Aboriginal Land Act 1991

An Act providing for the grant, and the claim and grant, of land as Aboriginal land, and for other purposes

Preamble

Whereas—

1Before European settlement land in what is now the State of Queensland had been occupied, used and enjoyed since time immemorial by Aboriginal people in accordance with Aboriginal tradition.

2Land is of spiritual, social, historical, cultural and economic importance to Aboriginal people.

3After European settlement many Aboriginal people were dispossessed and dispersed.

4Some Aboriginal people have maintained their ancestors’ traditional affiliation with particular areas of land.

5Some Aboriginal people have a historical association with particular areas of land based on them or their ancestors having lived on or used the land or neighbouring land.

6Some Aboriginal people have a requirement for land to ensure their economic or cultural viability.

7Some land has been set aside for Aboriginal reserves or for the benefit of Aboriginal people and deeds of grant in trust are held on behalf of certain Aboriginal people.

8The Parliament is satisfied that Aboriginal interests and responsibilities in relation to land have not been adequately and appropriately recognised by the law and that this has contributed to a general failure of previous policies in relation to Aboriginal people.

9The Parliament is further satisfied that special measures need to be enacted for the purpose of securing adequate advancement of the interests and responsibilities of Aboriginal people in Queensland and to rectify the consequences of past injustices.

10It is, therefore, the intention of the Parliament to make provision, by the special measures enacted by this Act, for the adequate and appropriate recognition of the interests and responsibilities of Aboriginal people in relation to land and thereby to foster the capacity for self-development, and the self-reliance and cultural integrity, of the Aboriginal people of Queensland.

1Short title

This Act may be cited as the Aboriginal Land Act 1991 .

2Definitions

The dictionary in schedule 1 defines particular words used in this Act.

s 2 prev s 2 om R3 (see RA s 37)

pres s 2 amd 2008 No. 29 s 4 (1), (11)

Note—s 2 contained definitions for this Act. Definitions are now located in sch 1 (Dictionary). Annotations for definitions contained in s 2 are located in annotations for sch 1.

3Aborigines particularly concerned with land etc.

(1)For the purposes of this Act, an Aborigine is particularly concerned with land if the Aborigine—

(a)has a particular connection with the land under Aboriginal tradition; or

(b)lives on or uses the land or neighbouring land.

(2)For the purposes of this Act, Aboriginal people are particularly concerned with land if—

(a)they are members of a group that has a particular connection with the land under Aboriginal tradition; or

(b)they live on or use the land or neighbouring land.

4Act binds all persons

This Act binds all persons, including the State, and, as far as the legislative power of the Parliament permits, the Commonwealth and the other States.

s 4 sub 2008 No. 29 s 6

5Meaning of Aboriginal people

Aboriginal people are people of the Aboriginal race of Australia.

s 5 prev s 5 ins 1993 No. 85 s 159 (retro)

om 2008 No. 29 s 5

s 5.21 om 1992 No. 20 s 159 sch 2

6Meaning of Aborigine

An Aborigine is a person of the Aboriginal race of Australia.

7Meaning of Aboriginal tradition

Aboriginal tradition is the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular group of Aboriginal people, and includes any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships.

8Meaning of Aboriginal land

(1)Aboriginal land is transferred land or granted land.

(2)Aboriginal land includes land that was transferred land and has subsequently become granted land.

s 8 amd 1993 No. 85 s 160 (amd 1994 No. 61 s 2 sch 2) (retro); 2008 No. 29 s 7; 2011 No. 26 s 13

9Meaning of transferable and transferred land

(1)Transferable land is land that is to be granted under part 4 without a claim being made under this Act for the land.

(2)Transferred land is land that is granted under part 4 without a claim being made under this Act for the land.

s 9 amd 1993 No. 85 s 160A (amd 1994 No. 61 s 2 sch 2); 2008 No. 29 s 8

s 9.05 om 1993 No. 85 s 164B (amd 1994 No. 61 s 2 sch 2)

s 9.09 om 1993 No. 85 s 164B (amd 1994 No. 61 s 2 sch 2)

s 9.11 ins 1993 No. 85 s 164D (amd 1994 No. 61 s 2 sch 2)

om R2 (see RA s 37)

10Lands that are transferable lands

(1)The following lands are transferable lands—

(a)DOGIT land;

(b)Aboriginal reserve land;

(e)available State land declared by regulation to be transferable land;

(f)land that is transferable land under section 174, 176 or 177;

(g)land that becomes transferable land under section 230;

(h)land in the following lots—

(i)Lot 1 on SP228365;

(ii)Lot 5 on SP228365;

(iii)Lot 129 on SP228365;

(iv)Lot 130 on SP228365;

(v)Lot 113 on SP228365;

(vi)Lot 119 on SP228365;

(vii)Lot 1 on SP228366;

(viii)Lot 2 on SP228367;

(ix)Lot 1951 on SP228368;

(x)Lot 90 on CP816530;

(xi)Lot 147 on SL7542;

(xii)Lot 300 on SP104019.

(2)However, land mentioned in subsection (1) ceases to be transferable land to the extent either of the following applies—

(a)it is taken, under the Acquisition Act, by a constructing authority;

(b)it is available land approved for a grant in fee simple by the chief executive under section 32C.

(3)Also, land mentioned in subsection (1) is not transferable land to the extent it is the subject of any of the following—

(a)a declaration in force under section 16;

(b)an offer to allocate available land under section 32T, while the offer is in force;

(c)an allocation process for available land under part 2A, division 6, until the process ends.

s 10 amd 1993 No. 85 s 160B (amd 1994 No. 61 s 2 sch 2); 2007 No. 48 s 32; 2008 No. 29 s 9; 2011 No. 8 s 4; 2011 No. 11 s 24; 2014 No. 45 ss 4, 58 sch 1 pt 2

11DOGIT land

(1)DOGIT land is land that, at the beginning of the enactment day, was—

(a)prescribed DOGIT land or land granted in trust under the Land Act 1962 for the benefit of Aboriginal inhabitants or for the purpose of an Aboriginal reserve; or

(b)within the external boundaries of an area of such land and—

(i)reserved and set apart for, or dedicated to, a public purpose under the Land Act 1962 ; or

(ii)land that has become unallocated State land by way of resumption for a public purpose within the meaning of the Land Act 1962 ; or

(iii)subject to a lease granted under the Land Holding Act; or

(iv)subject to a special lease granted under the Land Act 1962 ; or

(v)the subject of an application under the Land Holding Act, section 5, that had been approved by the trustee council, or approved on appeal by the appeal tribunal, under that Act, but for which a lease under that Act has not been granted;

other than—

(vi)a road; or

(vii)a stock route or associated reserve.

(2)DOGIT land includes land within the external boundaries of land mentioned in subsection (1) (a) that has, since the enactment day, ceased to be a road.

(3)Also, DOGIT land includes land within the external boundaries of land mentioned in subsection (1) (a) if—

(a)the land was the subject of an application under the Land Holding Act, section 5, that was approved by the trustee council, or approved on appeal by the appeal tribunal, under that Act after the enactment day; and

(b)a lease under that Act has not been granted for the land.

(4)DOGIT land does not include land within the external boundaries of land mentioned in subsection (1) (a) if the land has, since the enactment day, become a road.

s 11 amd 1993 No. 85 s 160C (amd 1994 No. 61 s 2 sch 2); 2008 No. 29 s 10; 2010 No. 39 s 304; 2011 No. 26 s 14; 2013 No. 23 s 4

12Aboriginal reserve land

(1)Aboriginal reserve land is land that, at the beginning of the enactment day, is—

(a)reserved and set apart under the Land Act 1962 for an Aboriginal reserve or for the benefit of Aboriginal inhabitants; or

(b)within the external boundaries of an area of such land and—

(i)subject to a lease granted under the Land Holding Act; or

(ii)the subject of an application under the Land Holding Act, section 5, that had been approved by the trustee council, or approved on appeal by the appeal tribunal, under that Act, but for which a lease under that Act has not been granted;

and includes land reserved and set apart under the Land Act 1962 for any other public purpose if the land is declared by regulation to be land that was, or is included in land that was, at the beginning of the enactment day, being used as an Aboriginal reserve or for the benefit of Aboriginal people.

(2)Also, Aboriginal reserve land includes land within the external boundaries of land mentioned in subsection (1) (a) if—

(a)the land was the subject of an application under the Land Holding Act, section 5, that was approved by the trustee council, or approved on appeal by the appeal tribunal, under that Act after the enactment day; and

(b)a lease under that Act has not been granted for the land.

(3)Further, Aboriginal reserve land includes land within the external boundaries of land mentioned in subsection (1) (a) if the land has, since the enactment day, ceased to be a road.

(4)Aboriginal reserve land does not include land within the external boundaries of land mentioned in subsection (1) (a) if the land has, since the enactment day, become a road.

s 12 amd 1993 No. 85 s 160D (amd 1994 No. 61 s 2 sch 2); 2008 No. 29 s 3 sch; 2011 No. 26 s 15; 2013 No. 23 s 5

div hdg ins 2008 No. 29 s 13

15Definition for div 4

In this division—

relevant land means the following land, or a part of the land—

(a)DOGIT land;

(b)Aboriginal reserve land, other than land declared under a regulation for section 12.

def relevant land amd 2014 No. 45 s 58 sch 1 pt 2

s 15 ins 2008 No. 29 s 13

16Particular land may be declared to be not transferable land

(1)The Minister may, by gazette notice, make a declaration that relevant land is not transferable land if the Minister is satisfied that—

(a)housing or essential or other infrastructure is situated on the land; or

(b)the land is being used as a town site or part of a town site; or

(c)the land is being used as if it were a road; or

(d)having regard to the nature or use of the land, it is not appropriate or practicable in the circumstances for the land to be granted in fee simple under this Act.

(2)In considering whether to make a declaration under subsection (1) (d), the Minister may have regard to matters relating to the nature or use of the relevant land the Minister considers appropriate, including, for example—

(a)whether the land is likely to be used as a town site or part of a town site; and

(b)whether the land is in a condition suitable to be granted under this Act.

(3)The Minister must not make a declaration under subsection (1) (d) before—

(a)if no appeal is made to the Land Court against the decision to make the declaration—the period for making an appeal ends; or

(b)if an appeal is made to the Land Court against the decision to make the declaration—the day the appeal is finally decided.

s 16 ins 2008 No. 29 s 13

amd 2011 No. 26 s 18

17Notice of intention to make declaration

(1)If the Minister intends to make a declaration under section 16, the Minister must—

(a)give notice of the Minister’s intention to make the declaration to the trustee of the relevant land; and

(b)as soon as practicable after giving the notice under paragraph (a), publish notice of the Minister’s intention to make the declaration in a newspaper or other publication circulating generally in the area where the relevant land is situated; and

(c)consider all representations made under subsection (4).

(2)The notice must—

(a)include a description of the relevant land; and

(b)state the following—

(i)the reasons for the proposed declaration;

(ii)that a person may make written representations to the Minister about the proposed declaration;

(iii)the place where the representations may be made;

(iv)the period in which the representations must be made.

(3)The stated period must end at least 28 days after the notice is published.

(4)A person may make written representations about the proposed declaration to the Minister within the stated period.

s 17 ins 2008 No. 29 s 13

amd 2011 No. 26 s 19; 2013 No. 23 s 352 sch 1 pt 1

18Minister to consider representations and give notice of decision

(1)After considering all representations made under section 17 (4) about the proposed declaration, the Minister must—

(a)decide whether to make the declaration; and

(b)give notice of the decision to—

(i)each person who made the representations; and

(ii)the trustee of the relevant land, if the trustee did not make any representations.

(2)The Minister may, after considering the representations, decide to make the declaration for all or a part of the relevant land described in the notice under section 17.

(3)If the Minister decides to make the declaration, the notice must—

(a)include a description of the relevant land to be declared not transferable under this division; and

(b)state all of the following—

(i)the provision under which the declaration is to be made;

(ii)the reasons for the decision;

(iii)if the Minister is to make the declaration under section 16 (1) (d)—that a person who made representations about the proposed declaration may appeal against the decision to the Land Court within 28 days after receiving the notice, and how the person may appeal.

s 18 ins 2008 No. 29 s 13

amd 2011 No. 26 s 20; 2013 No. 23 s 352 sch 1 pt 1

19Notice about declarations—trustee

As soon as practicable after a declaration that relevant land is not transferable land is made, the chief executive must give the trustee of the land notice of the declaration.

s 19 ins 2008 No. 29 s 13

amd 2013 No. 23 s 352 sch 1 pt 1

20Notice about declarations—registrar

(1)As soon as practicable after a declaration that relevant land is not transferable land is made, the chief executive must give the registrar notice of the declaration.

(2)The notice must include particulars of the land the subject of the declaration.

(3)The registrar must keep records that show the land is not transferable land.

(4)The registrar must keep the records in a way that a search of the appropriate register kept by the registrar will show the land is not transferable land.

(5)As soon as practicable after a declaration is repealed—

(a)the chief executive must give the registrar notice of the fact; and

(b)the registrar must amend the registrar’s records to show the land the subject of the repealed declaration is transferable land.

s 20 ins 2008 No. 29 s 13

amd 2013 No. 23 s 352 sch 1 pt 1

21Requirements about plans of subdivision for declarations

(1)This section applies if—

(a)under section 16, the Minister declares land is not transferable land; and

(b)a plan of subdivision is lodged for the land under the Land Title Act or Land Act for the purpose of identifying the land; and

(c)the plan of subdivision has been consented to by the Minister.

(2)The registrar must register the plan of subdivision without the consent of anyone whose consent would otherwise have been required under the relevant section if the plan otherwise complies with the relevant section.

(3)In this section—

relevant section means—

(a)for freehold land—the Land Title Act, section 50; or

(b)for other land—the Land Act, section 290J.

s 21 ins 2008 No. 29 s 13

amd 2011 No. 26 s 22

22Meaning of claimable and granted land

(1)Claimable land is land that may be claimed by, and granted under this Act to, a group of Aboriginal people.

(2)Granted land is claimable land that has been claimed by, and granted under this Act to, a group of Aboriginal people.

s 22 amd 1993 No. 85 s 160E (amd 1994 No. 61 s 2 sch 2); 2011 No. 26 s 23

23Land that is claimable land

(1)Subject to subsection (3), claimable land is—

(a)available State land declared by regulation to be claimable land for this Act; or

(b)Aboriginal land that—

(i)is transferred land; and

(ii)became transferred land before 22 December 2006.

(2)A declaration under subsection (1) (a) may describe the available State land concerned in any way, including, for example, describing the land as land included in a stated area of the State.

(3)A regulation may declare that an area of transferred land is not claimable land.

(4)A declaration under subsection (3) may be made only if—

(a)the land is primarily used or occupied by Aboriginal people for residential or community purposes; or

(b)the Minister has consulted with Aboriginal people particularly concerned with the land and a substantial majority of the Aboriginal people are opposed to the land being claimable land.

s 23 amd 1991 No. 76 s 4

sub 1993 No. 85 s 160F (amd 1994 No. 61 s 2 sch 2)

amd 2008 No. 29 s 3 sch; 2011 No. 26 s 24

div hdg (prev div 4A hdg) ins 2008 No. 29 s 3 sch

renum 2008 No. 29 s 3 sch

24Land that is available State land—general

(1)Land is available State land if it is—

(a)land, other than excluded land, in which no person other than the State has an interest; or

(b)land, other than excluded land, that is subject to an interest granted by the State, if an available State land agreement is in force for the land; or

(c)land inside the Torres Strait area that is land—

(i)in which no person other than the State has an interest; and

(ii)declared under a regulation to be available State land.

(2) Subsection (1) is subject to sections 26 and 27.

(3)In this section—

interest means a legal or equitable interest in the land but does not include native title, a mining interest or an easement.

s 24 amd 1991 No. 76 s 5; 1993 No. 85 s 160G (amd 1994 No. 61 s 2 sch 2); 1995 No. 57 s 4 sch 1; 2008 No. 29 s 14

sub 2011 No. 26 s 25

25Agreement about particular land

(1)The Minister may enter into a written agreement (an available State land agreement) about land, other than excluded land—

(a)with a person who has an interest in the land granted by the State; and

(b)under which the State and the person agree that the land may be available State land.

(2)The Minister may enter into an available State land agreement for particular land only if satisfied that entering into the agreement is appropriate in the circumstances having regard to an evaluation of the land under the Land Act, section 16.

(3)An available State land agreement must provide that on the grant of the land under part 4 the person’s interest in the land is to cease and a new interest granted by the trustee of the land is to have effect in substitution for the person’s interest.

(4)However, if the interest is a lease granted under the Land Act the agreement may provide that the lease is to continue in force under section 45.

(5) Subsection (6) applies if a proposed available State land agreement is to state that a person’s interest in land is to cease and a new interest granted by the proposed trustee of the land is to have effect in substitution for the person’s interest.

(6)To remove any doubt, it is declared that the Minister need not enter into the available State land agreement unless satisfied a new interest granted by the proposed trustee of the land is to have effect in substitution for the person’s interest in the land.

s 25 ins 2011 No. 26 s 25

26Watercourses and lakes

Available State land includes a watercourse or lake only to the extent the watercourse or lake is—

(a)within the external boundaries of land that is otherwise available State land; and

(b)capable of being owned in fee simple by a person other than the State.

s 26 amd 2008 No. 29 s 3 sch; 2010 No. 12 s 6

27Tidal land

(1)Available State land includes tidal land only if the particular tidal land is declared by regulation to be available State land.

(2)Subject to subsection (1), this Act applies to tidal land as if it were not tidal land.

s 27 amd 1993 No. 85 s 160H (amd 1994 No. 61 s 2 sch 2); 1994 No. 49 s 6 sch 2; 1994 No. 81 s 527 sch 5; 2008 No. 29 s 3 sch

28Meaning of city or town land

(1)Subject to subsection (2), city or town land is land that is within the boundaries of a city or town constituted under the Local Government Act 2009 or the City of Brisbane Act 2010 .

(2)A regulation may change the boundaries of a city or town.

(3)A regulation under subsection (2) has effect only for this Act.

s 28 amd 1993 No. 85 s 160I (amd 1994 No. 61 s 2 sch 2); 2009 No. 17 s 331 sch 1; 2010 No. 23 s 352 sch 1; 2011 No. 26 s 26

29Meaning of township land

A regulation may declare that land is township land for this Act.

s 29 sub 1993 No. 85 s 160J (amd 1994 No. 61 s 2 sch 2)

30National parks

To allay any doubt, it is declared that available State land includes any national park.

s 30 amd 2008 No. 29 s 3 sch

31Land that is not available State land

(1)To remove any doubt, it is declared that the following land is not available State land—

(a)the waters of the sea, and the seabed, other than tidal land declared to be available State land under section 27 (1);

(b)freehold land;

(c)an associated reserve;

(d)land subject to a lease, licence or permit under the Land Act.

(2)Despite subsection (1) (d), land subject to a lease, licence or permit under the Land Act is available State land if an available State land agreement is in force for the land.

s 31 prev s 31 ins 1993 No. 85 s 160M (amd 1994 No. 61 s 2 sch 2)

amd 2008 No. 29 s 21

om 2011 No. 26 s 34

pres s 31 amd 1994 No. 81 s 527 sch 5; 2008 No. 29 s 3 sch

sub 2011 No. 26 s 27

div hdg (prev div 5 hdg) renum 2008 No. 29 s 3 sch

32Application of laws

(1)To allay any doubt, it is declared that, except as provided by this Act or any other Act, the laws of the State apply to Aboriginal land, persons and things on Aboriginal land, and acts and things done on Aboriginal land, to the same extent, and in the same way, as if the land were not Aboriginal land.

(2)Without limiting subsection (1), to allay any doubt it is declared that this Act has effect subject to the Fisheries Act 1994 .

s 32 amd 1994 No. 37 s 244 sch 2; 2004 No. 5 s 8 sch

pt hdg ins 2014 No. 45 s 5

div 1 (s 32A) ins 2014 No. 45 s 5

32AOverview

This part—

(a)allows available land to be granted in freehold under the Land Act to an eligible person for the available land; and

(b)requires—

(i)the trustee of freehold option land to consult on and make a freehold instrument; and

(ii)the local government for the area in which the land is situated to attach the freehold instrument to its planning scheme; and

(c)sets out how, and to whom, the trustee may allocate available land depending on whether the person is an eligible person for the land.

div 1 (s 32A) ins 2014 No. 45 s 5

div 2 (s 32B) ins 2014 No. 45 s 5

32BDefinitions for pt 2A

In this part—

allocation method, for available land, means—

(a)the auction, ballot or tender to be used to allocate the available land; and

(b)the conditions of the auction, ballot or tender.

allocation notice see section 32Z (1) (a).

allocation process, for available land, means—

(a)if there is an interest holder for the available land—the process stated in division 5; or

(b)otherwise—the process stated in division 6.

appeal period, for available land, means the period starting on the day a person receives an information notice in relation to the available land and ending—

(a)if no notice of appeal is filed in relation to the available land—on the last day for making an appeal; or

(b)if a notice of appeal is filed in relation to the available land—when the appeal is finally decided.

available land see section 32D (3).

closing day, for division 6, see section 32ZA (1) (d).

eligibility criteria see section 32D (6) (a).

eligible person, for available land, means a person who meets the eligibility criteria for the land and is—

(a)an Aboriginal person or Torres Strait Islander; or

(b)the spouse or former spouse of—

(i)a person mentioned in paragraph (a); or

(ii)an Aboriginal person or Torres Strait Islander who is deceased.

freehold instrument means a freehold schedule and the freehold policy for the freehold schedule.

freehold option land means land in the Aurukun Shire Council’s area, the Mornington Shire Council’s area or an indigenous local government’s area if—

(a)any of the following entities are the trustee of the land—

(i)the Aurukun Shire Council;

(ii)the Mornington Shire Council;

(iii)an indigenous local government;

(iv)a land trust;

(v)another entity holding the land under this Act; and

(b)the land is in an urban area.

freehold policy, for a freehold schedule, see section 32D (5).

freehold schedule—

(a)means a schedule made as mentioned in section 32D (1) by the trustee of freehold option land; and

(b)includes a model freehold schedule.

indigenous local government see the Local Government Act 2009, schedule 4.

interest holder, for available land, means a person who holds any of the following interests in the land—

(a)a registered lease granted under this Act or the Land Act, other than a townsite lease;

(b)a lease entitlement under the new Land Holding Act;

(c)a 1985 Act granted lease or a new Act granted lease under the new Land Holding Act;

(d)a registered sublease, including a registered lease of a townsite lease;

(e)a residential tenancy agreement for a social housing dwelling situated on the available land;

(f)a right to occupy or use the available land under section 199.

model freehold instrument, for division 4, subdivision 2, see section 32F.

model freehold schedule see section 32D (4).

native title holder has the same meaning as it has in the Commonwealth Native Title Act.

offer means an offer to an eligible person by a trustee to allocate available land to the person under section 32T.

planning scheme see the Sustainable Planning Act 2009 , section 79.

probity advisor see section 32ZB (1).

urban area means an area identified as an area intended for either urban purposes or future urban purposes on a map in a planning scheme used to show zones.

urban purposes means purposes for which land is used in cities or towns, including residential, industrial, sporting, recreation and commercial purposes.

div 2 (s 32B) ins 2014 No. 45 s 5

div 3 (s 32C) ins 2014 No. 45 s 5

32CApproval for grant of available land

(1)The trustee of freehold option land may apply to the chief executive, in the approved form, for available land to be granted in fee simple under the Land Act to the eligible person who has been allocated the available land under this part.

(2)The trustee may make the application only if—

(a)there is a freehold instrument for the available land; and

(b)the trustee has followed the allocation process for the available land.

(3)Information in the application must, if the approved form requires, be verified by a statutory declaration.

(4)In deciding the application, the chief executive—

(a)must be reasonably satisfied—

(i)agreements or arrangements appropriate to granting the available land as freehold have been entered into or are in place, including, for example, in relation to the following—

(A)native title;

(B)any social housing dwelling on the available land;

(C)road access to the available land; and

(ii)there is a lot on plan description for the available land; and

(iii)if the available land is allocated under section 32ZF—a probity advisor has certified the probity of the allocation process for the available land; and

(b)may consider any other matter the chief executive reasonably considers relevant.

(5)If the chief executive approves the application, the Governor in Council may grant the land in fee simple under the Land Act.

Note—

See the Land Act, section 14.

div 3 (s 32C) ins 2014 No. 45 s 5

div hdg ins 2014 No. 45 s 5

sdiv 1 (ss 32D–32E) ins 2014 No. 45 s 5

32DTrustee may make freehold instrument

(1)The trustee of freehold option land may, by resolution, make a schedule identifying the freehold option land available to be granted in freehold.

(2)The freehold schedule must identify the freehold option land so the boundaries of the land are capable of being decided.

(3)Freehold option land identified in a freehold schedule is available land.

(4)A freehold schedule that only identifies freehold option land of a type prescribed by regulation for this subsection is a model freehold schedule.

(5)If the trustee makes a freehold schedule, the trustee must, by resolution, make a policy (a freehold policy) at the same time to help the trustee in implementing the freehold schedule.

(6)The freehold policy must be in the approved form and state—

(a)the criteria (the eligibility criteria) for participating in the allocation process for available land; and

(b)if there is no interest holder for available land—the allocation method for available land; and

(c)the sale price of available land and the costs to be recovered from the sale price; and

(d)how the community will be consulted about the allocation process for available land; and

(e)how the trustee will deal with interests in, or in relation to, available land, before it is allocated; and

(f)the social and financial implications for the community in providing freehold; and

(g)the social and financial implications for any eligible person who is granted freehold; and

(h)the potential to attract investment and new members into the community; and

(i)any other matter prescribed by regulation.

sdiv 1 (ss 32D–32E) ins 2014 No. 45 s 5

32ETrustee may have only 1 freehold instrument

(1)The trustee of freehold option land may have only 1 freehold instrument for the land.

(2)However, if the trustee is an indigenous regional council, the trustee may have more than 1 freehold instrument only if the freehold instruments do not overlap in relation to available land.

(3)In this section—

indigenous regional council see the Local Government Act 2009 , schedule 4.

sdiv 1 (ss 32D–32E) ins 2014 No. 45 s 5

sdiv 2 (ss 32F–32M) ins 2014 No. 45 s 5

32FDefinition for sdiv 2

In this subdivision—

model freehold instrument means a model freehold schedule and the freehold policy for the model freehold schedule.

sdiv 2 (ss 32F–32M) ins 2014 No. 45 s 5

32GApplication of sdiv 2

This subdivision states how a freehold instrument may be made, amended or repealed.

sdiv 2 (ss 32F–32M) ins 2014 No. 45 s 5

32HMinister to make and publish guideline

(1)The Minister must make, and publish on the department’s website, a guideline about the process for—

(a)attaching a freehold instrument to a local government’s planning scheme; and

(b)amending or repealing a freehold instrument.

(2)The guideline must make provision for a local government to do all of the following things before attaching a freehold instrument to its planning scheme—

(a)publish a notice about the freehold instrument in a newspaper or other publication circulating generally in the local government’s area at least once;

(b)carry out public consultation about the freehold instrument;

(c)give the Minister a notice summarising the matters raised during the public consultation and stating how the local government or the trustee dealt with the matters.

sdiv 2 (ss 32F–32M) ins 2014 No. 45 s 5

32ITrustee to consult

(1)Before the trustee of freehold option land starts the process for making a freehold instrument in relation to freehold option land, the trustee must decide on the way (the decided way) in which the trustee will consult about the making of the freehold instrument.

Note—

See section 179.

(2)The purpose of the consultation is to enable the trustee to be reasonably satisfied it is appropriate for the freehold option land to be granted in freehold.

(3)The decided way must—

(a)require the trustee to consult with the native title holders for the freehold option land proposed to be included in the freehold schedule; and

(b)include how the trustee will notify the community about the freehold instrument; and

(c)allow a suitable and sufficient opportunity for each person the trustee consults to express their views about the freehold instrument.

(4)The trustee must—

(a)consult on the freehold instrument in the decided way; and

(b)keep records about the consultation showing the consultation was consistent with the decided way.

sdiv 2 (ss 32F–32M) ins 2014 No. 45 s 5

32JTrustee to give freehold instrument to Minister or local government

(1)This section applies if, after consulting on a proposed freehold instrument, the trustee decides to continue to make a freehold instrument.

(2)The trustee must—

(a)for a model freehold instrument—give the model freehold instrument to the Minister for approval; or

(b)otherwise—ask, by notice, the local government for the area in which the proposed freehold option land is situated to attach the freehold instrument to the local government’s planning scheme.

(3)In this section—

proposed freehold option land means freehold option land proposed to be included in a freehold schedule.

sdiv 2 (ss 32F–32M) ins 2014 No. 45 s 5

32KLocal government to follow process in guideline

(1)This section applies if a local government receives a notice under section 32J (2) (b) in relation to a freehold instrument.

(2)The local government must follow the process stated in the guideline made by the Minister under section 32H.

(3)After the process is completed, the local government must give the freehold instrument to the Minister for approval.

sdiv 2 (ss 32F–32M) ins 2014 No. 45 s 5

32LMinister may approve

(1)If the Minister is given a freehold instrument for approval, the Minister may—

(a)approve the freehold instrument; or

(b)approve the freehold instrument on the condition the local government or trustee for the available land amends the freehold instrument in the way the Minister directs; or

(c)refuse to approve the freehold instrument.

(2)In making a decision under subsection (1) about a freehold instrument, other than a model freehold instrument, the Minister must have regard to information given to the Minister by the local government for the freehold instrument after the local government has completed the process under section 32K.

(3)The Minister may approve a freehold instrument if reasonably satisfied—

(a)for a model freehold instrument—the model freehold schedule only includes freehold option land of a type prescribed by regulation for section 32D (4); and

(b)the trustee has consulted with the native title holders for the freehold option land proposed to be included in the freehold schedule; and

(c)the consultation was consistent with the way decided by the trustee under section 32I.

(4)The Minister must give notice of the decision under subsection (1) to the local government and the trustee for the freehold instrument.

(5)If the Minister approves a freehold instrument, the local government must—

(a)attach the freehold instrument to its planning scheme; and

(b)publish, in a newspaper or other publication circulating generally in the local government’s area at least once, a notice stating the freehold instrument is approved and attached to its planning scheme.

sdiv 2 (ss 32F–32M) ins 2014 No. 45 s 5

32MAmending or repealing freehold instrument

A freehold instrument attached to a local government’s planning scheme may be amended or repealed by a trustee only by following the process stated in the guideline made by the Minister under section 32H.

sdiv 2 (ss 32F–32M) ins 2014 No. 45 s 5

sdiv 3 (ss 32N–32O) ins 2014 No. 45 s 5

32NEffect of freehold instrument

A freehold instrument has effect on and after the day the local government for the area in which the available land is situated attaches the freehold instrument to the local government’s planning scheme.

sdiv 3 (ss 32N–32O) ins 2014 No. 45 s 5

32ORelationship with planning scheme

(1)Attaching a freehold instrument to a planning scheme is not an amendment of the planning scheme.

(2)A freehold instrument attached to a planning scheme—

(a)does not form part of the planning scheme; and

(b)is the responsibility of the trustee for the available land; and

(c)if the planning scheme is amended or repealed and remade (with or without modification)—may be attached without amendment by the local government to the amended or remade planning scheme.

sdiv 3 (ss 32N–32O) ins 2014 No. 45 s 5

div 5 (ss 32P–32X) ins 2014 No. 45 s 5

32PApplication of div 5

This division states the allocation process for available land if there is an interest holder for the available land.

div 5 (ss 32P–32X) ins 2014 No. 45 s 5

32QApplication for available land

A person who is an eligible person and an interest holder for available land may apply, in the approved form, to the trustee of the land for the land to be granted to the person.

div 5 (ss 32P–32X) ins 2014 No. 45 s 5

32RDwelling on available land

(1)This section applies if a dwelling is situated on available land the subject of the application.

(2)The trustee must give notice about the application to the housing chief executive.

(3)Within 28 days after receiving the notice, the housing chief executive must give the trustee a notice (a dwelling notice) stating whether—

(a)the dwelling is a social housing dwelling; and

(b)if the dwelling is a social housing dwelling—the housing chief executive consents to the applicant making the application.

(4)In deciding whether to consent to the applicant making the application, the housing chief executive must have regard to whether it would be more appropriate in the circumstances for the dwelling to continue to be social housing.

(5)If the dwelling notice states the housing chief executive consents to the applicant making the application, the trustee must decide the value of the dwelling by using the valuation methodology agreed between the trustee and the housing chief executive.

(6)The housing chief executive must, if asked, give a person a copy of the valuation methodology.

div 5 (ss 32P–32X) ins 2014 No. 45 s 5

32SDecision on application

(1)The trustee must consider the application and decide to approve or refuse the application.

(2)However, if a dwelling is situated on the available land the subject of the application, the trustee—

(a)must not decide the application until the trustee receives a notice from the housing chief executive under section 32R (3); and

(b)must refuse the application if the notice states the dwelling is a social housing dwelling and the housing chief executive does not consent to the applicant making the application.

(3)The trustee may approve the application only if the trustee is reasonably satisfied—

(a)the applicant is an eligible person for the available land the subject of the application; and

(b)if there is more than 1 interest holder for the available land, either—

(i)all interest holders for the available land have made the application; or

(ii)all interest holders for the available land have consented to the applicant making the application; and

(c)if there is a mortgage over the available land—the mortgagee has consented to the applicant making the application.

(4)If the trustee is reasonably satisfied of the matters mentioned in subsection (3), the trustee must approve the application.

(5)If the trustee decides to refuse the application, the trustee must give the applicant an information notice for the decision.

div 5 (ss 32P–32X) ins 2014 No. 45 s 5

32TOffer to allocate available land

(1)If the trustee approves the eligible person’s application, the trustee must offer, in writing, to allocate the available land to the eligible person.

(2)However, the trustee may make the offer only after the appeal period for the available land.

(3)If there is a social housing dwelling on the available land, the trustee must make the offer subject to a condition that the eligible person must purchase the dwelling at the value decided under section 32R (5).

(4)The trustee may make the offer subject to any other conditions the trustee reasonably considers necessary.

(5)In deciding whether to impose conditions on the offer under subsection (4), the trustee must have regard to the freehold instrument.

(6)If the trustee decides to impose conditions on the offer, other than a condition mentioned in subsection (3), the trustee must give the eligible person an information notice for the decision.

(7)The trustee must give notice to the chief executive in the approved form about the offer.

div 5 (ss 32P–32X) ins 2014 No. 45 s 5

32UAcceptance and refusal of offer

(1)On receipt of the trustee’s offer, the eligible person may accept or refuse the offer by notice given to the trustee.

(2)However, if the eligible person does not give notice to the trustee within 45 days after the eligible person receives the offer, the eligible person is taken to have refused the offer.

(3)If the eligible person refuses the offer, the trustee must give notice about the refusal to the chief executive.

div 5 (ss 32P–32X) ins 2014 No. 45 s 5

32VCooling-off period to apply to acceptance

(1)A cooling-off period, for accepting an offer, is a period of 5 business days—

(a)starting on the day the eligible person gives notice about accepting the offer to the trustee; and

(b)ending at 5p.m. on the fifth business day after the day mentioned in paragraph (a).

(2)An eligible person who accepts, or proposes to accept, an offer may give written notice to the trustee—

(a)waiving the cooling-off period for accepting the offer; or

(b)shortening the cooling-off period for accepting the offer.

(3)An eligible person who has not waived the cooling-off period for accepting an offer may rescind or revoke the acceptance by giving a signed notice of rescission or revocation to the trustee at any time during—

(a)the cooling-off period; or

(b)if the period has been shortened under subsection (2) (b), the shortened period.

(4)If the acceptance is rescinded or revoked under subsection (3), the trustee must, within 14 days, refund any deposit paid under the acceptance to the eligible person.

(5)An amount payable to the eligible person under subsection (4) is recoverable from the trustee as a debt.

div 5 (ss 32P–32X) ins 2014 No. 45 s 5

32WWhen offer ends

An offer ends when the first of the following happens—

(a)the eligible person refuses the offer under section 32U;

(b)the eligible person gives notice of rescission or revocation of acceptance to the trustee under section 32V;

(c)the eligible person dies;

(d)the eligible person is no longer an interest holder for the available land;

(e)if the offer includes a condition about when the offer ends—the day the offer ends under the condition.

div 5 (ss 32P–32X) ins 2014 No. 45 s 5

32XAllocation of available land to eligible person

(1)After complying with all conditions of the offer, the eligible person must give notice to the trustee.

(2)If, after receiving the notice, the trustee is reasonably satisfied the eligible person has complied with all conditions of the offer, the trustee must allocate the available land to the eligible person.

Note—

Available land may be granted in freehold to an eligible person who is allocated the available land. See section 32C.

div 5 (ss 32P–32X) ins 2014 No. 45 s 5

div 6 (ss 32Y–32ZG) ins 2014 No. 45 s 5

32YApplication of div 6

This division states the allocation process for available land if there is no interest holder for the available land.

Note—

A freehold instrument states the allocation method for available land. See section 32D (6).

div 6 (ss 32Y–32ZG) ins 2014 No. 45 s 5

32ZPublic notice of intention to allocate available land

(1)Before allocating available land, the trustee of the available land must publish notice of the trustee’s intention to allocate the available land—

(a)by gazette notice (the allocation notice); and

(b)in a newspaper or other publication circulating generally in the area in which the land is situated at least once.

(2)The trustee may act under subsection (1) only if—

(a)there is a lot on plan description for the available land; and

(b)there is dedicated access to the available land; and

(c)native title over the available land has been, or will be, surrendered or extinguished; and

(d)the trustee has given notice to the chief executive about the trustee’s intention to allocate the available land.

div 6 (ss 32Y–32ZG) ins 2014 No. 45 s 5

32ZAInformation to be included in allocation notice

(1)The allocation notice must include the following information for the available land—

(a)the eligibility criteria;

(b)the allocation method;

(c)the conditions applying to an offer of the available land;

(d)the day (the closing day) applications to participate in the allocation process close;

(e)the time and place for making applications;

(f)the reserve or purchase price;

(g)the deposit, if any, to be paid to participate in the allocation process and the proposed date, time and place for payment of the deposit;

(h)the proposed date, time and place where the available land will be allocated;

Note—

After the appeal period for the available land, the trustee must give notice of the date, time and place where the available land will be allocated. See section 32ZD.

(i)the name and contact details of the probity advisor appointed.

(2)The closing day must be at least 30 days after the allocation notice is gazetted.

div 6 (ss 32Y–32ZG) ins 2014 No. 45 s 5

32ZBProbity advisor

(1)The trustee must appoint an appropriately qualified and independent person (a probity advisor) to ensure the probity of the allocation process for the available land.

(2)The probity advisor must—

(a)monitor the allocation process for the available land; and

(b)advise the trustee on matters relating to the probity of the allocation process; and

(c)prepare and give to the trustee a report about the probity of the allocation process and, if reasonably satisfied the allocation process was undertaken correctly, certify that fact.

div 6 (ss 32Y–32ZG) ins 2014 No. 45 s 5

32ZCDecision on application to participate in allocation process

(1)As soon as practicable after the closing day, the trustee must decide whether each applicant is an eligible person for the available land and give each applicant a notice about the decision.

(2)If the trustee decides an applicant is an eligible person for the available land, the trustee must allow the applicant to participate in the allocation process for the available land.

(3)If the trustee decides the applicant is not an eligible person for the available land, the trustee—

(a)must give the applicant an information notice for the decision; and

(b)must not allow the applicant to participate in the allocation process for the available land.

div 6 (ss 32Y–32ZG) ins 2014 No. 45 s 5

32ZDNotice of allocation of available land

(1)After the appeal period for the available land, the trustee must give each applicant who is able to participate in the allocation process for the available land a notice stating—

(a)the date, time and place where the available land will be allocated (the allocation date); and

(b)if the allocation notice requires a deposit to be paid—the date by which the deposit must be paid; and

(c)the applicant must give notice to the trustee before the allocation date if the applicant no longer wishes to participate in the allocation process.

(2)The date mentioned in subsection (1) (b) must be—

(a)at least 30 days after the notice under this section is given; and

(b)before the allocation date.

(3)If the applicant does not pay the deposit by the date mentioned in subsection (1) (b), the applicant must not participate in the allocation process.

div 6 (ss 32Y–32ZG) ins 2014 No. 45 s 5

32ZEHow and when trustee may allocate

The trustee may allocate the available land only—

(a)after the end of the appeal period; and

(b)by using the allocation method consistent with all of the following for the available land—

(i)the freehold instrument;

(ii)the allocation notice;

(iii)the probity advisor’s advice.

div 6 (ss 32Y–32ZG) ins 2014 No. 45 s 5

32ZFAllocation of available land

The trustee must allocate the available land to the eligible person who is the winner under the allocation method used to allocate the available land.

Note—

Available land may be granted in freehold to an eligible person who is allocated the available land. See section 32C.

div 6 (ss 32Y–32ZG) ins 2014 No. 45 s 5

32ZGDeposits

The trustee must refund the deposit of each unsuccessful applicant after the trustee allocates the available land.

div 6 (ss 32Y–32ZG) ins 2014 No. 45 s 5

div hdg ins 2014 No. 45 s 5

32ZHContinuation of mortgages and easements

A deed of grant for available land approved to be granted in fee simple under section 32C is subject to all registered mortgages and easements to which the available land was subject immediately before it was granted, and in the same priorities.

s 32ZH ins 2014 No. 45 s 5

32ZICancellation of deeds of grant in trust, reserves etc.

(1)This section applies if—

(a)available land is subject to any of the following (each an old tenure) when the trustee for the land applies for the land to be granted in fee simple under section 32C—

(i)a deed of grant in trust;

(ii)a reserve dedicated under the Land Act;

(iii)a townsite lease;

(iv)an interest mentioned in section 32B, definition interest holder; and

(b)a deed of grant in fee simple (a new tenure) for the available land is registered.

(2)The old tenure is cancelled to the extent of the new tenure.

s 32ZI ins 2014 No. 45 s 5

amd 2014 No. 45 s 58 sch 1 pt 2

pt hdg ins 2008 No. 29 s 15

33Purpose of pt 3

The purpose of this part is to provide for a process under which Aboriginal people may formally express an interest to the chief executive in having particular land made transferable land.

s 33 ins 2008 No. 29 s 15

34Land to which pt 3 applies

This part applies to the following land—

(a)available State land;

(b)land dedicated as a reserve under the Land Act;

(c)a stock route;

(d)land subject to an occupation licence;

(e)land held under a lease under the Land Act by or for Aboriginal people.

s 34 ins 2008 No. 29 s 15

35Expression of interest in having land made transferable land

(1)Aboriginal people particularly concerned with land mentioned in section 34 may, by notice given to the chief executive (an expression of interest), express an interest in having the land made transferable land.

(2)The expression of interest must—

(a)be in the approved form; and

(b)include the details required in the approved form to enable the chief executive to properly consider the expression of interest.

s 35 ins 2008 No. 29 s 15

36Chief executive to consider expression of interest

(1)The chief executive must consider each expression of interest.

(2)Without limiting subsection (1), the chief executive may consider an expression of interest by evaluating the land to which it relates under the Land Act, section 16.

s 36 ins 2008 No. 29 s 15

37Consideration of expression of interest does not impose obligation on State

The chief executive’s consideration of an expression of interest does not impose an obligation on the State under this Act to make the land to which it relates transferable land.

s 37 prev s 37 om 2011 No. 26 s 38

pres s 37 ins 2008 No. 29 s 15

pt 4 div 1 sdiv 1

sdiv 1 (ss 40A–40B) ins 2008 No. 29 s 24 (prev located in orig pt 3 div 2)

om 2011 No. 26 s 40

pt 4 div 1 sdiv 2

sdiv 2 (s 40C) ins 2008 No. 29 s 24 (prev located in orig pt 3 div 2)

om 2011 No. 26 s 40

pt 4 div 1 sdiv 3

sdiv 3 (ss 40D–40N) ins 2008 No. 29 s 24 (prev located in orig pt 3 div 2)

om 2011 No. 26 s 40

pt 4 div 1 sdiv 4

sdiv 4 (ss 40O–40Y) ins 2008 No. 29 s 24 (prev located in orig pt 3 div 2)

om 2011 No. 26 s 40

pt 4 div 1 sdiv 5

sdiv 5 (ss 40Z–40ZA) ins 2008 No. 29 s 24 (prev located in orig pt 3 div 2)

om 2011 No. 26 s 40

pt 4 div 1 sdiv 6

sdiv 6 (ss 40ZB–40ZF) ins 2008 No. 29 s 24 (prev located in orig pt 3 div 2)

om 2011 No. 26 s 40

pt 4 div 1 sdiv 7

sdiv 7 (s 40ZG) ins 2008 No. 29 s 24 (prev located in orig pt 3 div 2)

om 2011 No. 26 s 40

pt 4 div 1 sdiv 8

sdiv 8 (s 40ZH) ins 2008 No. 29 s 24 (prev located in orig pt 3 div 2)

om 2011 No. 26 s 40

pt 4 div 1 sdiv 9

sdiv 9 (ss 40ZI–40ZJ) ins 2008 No. 29 s 24 (prev located in orig pt 3 div 2)

om 2011 No. 26 s 40

38Deeds of grant to be prepared

(1)The chief executive must prepare such deeds of grant in fee simple as the Minister considers necessary and directs over transferable lands.

(2)Transferable land need not be surveyed but may be described in a deed of grant in such manner as the Minister directs.

(3)The deed of grant must show that the land is held by the grantee—

(a)if the grantee is a registered native title body corporate appointed as the grantee under section 39—for the native title holders of the land; or

(b)otherwise—

(i)for the benefit of Aboriginal people particularly concerned with the land and their ancestors and descendants; or

(ii)if the land is prescribed DOGIT land that is to be held for the benefit of Aboriginal people and Torres Strait Islanders particularly concerned with the land—for the benefit of Aboriginal people and Torres Strait Islanders particularly concerned with the land, and their ancestors and descendants.

(4)If the grantee is a registered native title body corporate appointed under section 39, the deed of grant also must include information to identify the native title holders of the land.

(5) Subsections (2), (3) and (4) have effect despite any other Act or any rule of law or practice.

s 38 amd 2008 No. 29 s 16; 2010 No. 39 s 305; 2011 No. 26 s 28

39Appointment of registered native title body corporate as grantee to hold land for native title holders

(1)This section applies to transferable land if—

(a)under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land; and

(b)there is a registered native title body corporate for the determination.

(2)The Minister may, with the consent of the registered native title body corporate, appoint the body corporate to be the grantee of the land under a deed of grant prepared under section 38.

(3)If the Minister appoints the registered native title body corporate to be the grantee of the land under this section, the body corporate holds the land for the native title holders of the land the subject of the determination mentioned in subsection (1) (a).

(4)In considering whether to appoint a registered native title body corporate under this section, the Minister may have regard to any matter the Minister considers relevant to the proposed appointment, including, for example—

(a)whether the making of the proposed appointment was a matter relevant to the native title claim under the Commonwealth Native Title Act that resulted in the determination that native title existed in relation to all or a part of the land; and

(b)whether any Aboriginal people particularly concerned with the land, other than the native title holders of the land, may be adversely affected by the proposed appointment; and

(c)if the Minister is satisfied Aboriginal people particularly concerned with the land will be adversely affected by the proposed appointment—any action the registered native title body corporate intends to take to address the concerns of the Aboriginal people.

s 39 ins 2008 No. 29 s 17

amd 2010 No. 39 s 306; 2011 No. 26 s 29

40Appointment of grantee to hold land for benefit of Aboriginal people

(1)This section applies if the Minister does not appoint, under section 39, a registered native title body corporate as the grantee of land.

(2)The Minister may appoint as grantee of the land—

(a)a CATSI corporation that is qualified to hold the land; or

(b)a land trust.

(3)However, the Minister may appoint a CATSI corporation that is a registered native title body corporate as a grantee of land under subsection (2) only if—

(a)under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land; and

(b)the registered native title body corporate is registered on the National Native Title Register for the determination.

(4)Before making the appointment, the Minister must consult with, and consider the views of, Aboriginal people particularly concerned with the land.

(5) Subsection (4) does not apply if an ILUA has been entered into for the land and the entity is nominated in the ILUA as the proposed grantee for the land under this Act.

(6)However, in considering whether to appoint an entity nominated in an ILUA as the proposed grantee for the land, the Minister may have regard to any matter the Minister considers relevant to the proposed appointment, including, for example—

(a)whether any Aboriginal people particularly concerned with the land may be adversely affected by the appointment; and

(b)if the Minister is satisfied any Aboriginal people particularly concerned with the land will be adversely affected by the appointment—any action the entity intends to take to address the concerns of the Aboriginal people.

(7)Also, in considering whether to appoint a registered native title body corporate as the proposed grantee for the land, the Minister may have regard to any matter the Minister considers relevant to the proposed appointment, including, for example, the matters mentioned in section 39 (4) (b) and (c).

(8)In appointing a grantee of land under this section, the Minister must have regard to any Aboriginal tradition applicable to the land.

s 40 amd 1991 No. 76 s 6; 1993 No. 85 s 160K (amd 1994 No. 61 s 2 sch 2); 2007 No. 48 s 33; 2008 No. 29 s 18; 2010 No. 39 s 307

sub 2011 No. 26 s 30

amd 2014 No. 45 s 58 sch 1 pt 2

41Procedure for appointing particular grantee

(1)Before appointing a grantee of land under this part, other than an entity nominated in an ILUA as the proposed grantee for the land, the Minister must—

(a)publish notice of the Minister’s intention to appoint the grantee in a newspaper or other publication circulating generally in the area in which the land the subject of the deed of grant is situated; and

(b)consider all representations made to the Minister under subsection (4).

(2)The notice must—

(a)include a description of the land; and

(b)state the following—

(i)the name of the proposed grantee;

(ii)that an Aboriginal person particularly concerned with the land may make written representations to the Minister about the proposed appointment;

(iii)the place where the representations may be made;

(iv)the period in which the representations must be made.

(3)The stated period must end at least 28 days after the notice is published.

(4)An Aboriginal person particularly concerned with the land may make written representations about the proposed appointment to the Minister within the stated period.

s 41 ins 2008 No. 29 s 19

amd 2011 No. 26 s 31

42Minister to act as soon as possible

(1)The Minister must, as soon as practicable after the commencement of sections 38 and 40, give all necessary directions under section 38, and make all necessary appointments under section 39 or 40, in relation to land that is transferable land on the enactment day.

(2)If, under section 10 (1) (e) or 12, land becomes transferable land after the enactment day, the Minister must, as soon as practicable after the land becomes transferable land, give all necessary directions under section 38, and make all necessary appointments under section 39 or 40, in relation to the land.

(3)However, the Minister need not act as mentioned in subsections (1) and (2) in relation to land until the Minister is reasonably satisfied—

(a)arrangements are in place to ensure—

(i)the Commonwealth and the State can continue to provide services to communities on the land after it is granted; and

(ii)the local government for the area in which the land is situated can continue to provide local government services to communities on the land after it is granted; and

Example of an arrangement for paragraph (a)—

a lease

(b)if the land is proposed to be granted to an entity other than a registered native title body corporate, arrangements that the Minister considers necessary—

(i)to support use of the land by Aboriginal people particularly concerned with it; and

(ii)to ensure appropriate services, including, for example, social housing, public works and community infrastructure, can be provided for communities on the land;

are in place to deal with matters relevant to the use of the land after it is granted; and

Example of an arrangement for paragraph (b)—

an ILUA

(c)if the land is or includes township land, arrangements are in place to provide for—

(i)the land to continue to be used as township land; and

(ii)residents of the township land to continue to live on and access the land, and obtain tenure over the land under this Act.

Examples of an arrangement for paragraph (c)—

an ILUA, a townsite lease or another lease

(4)In this section—

local government services includes any services a local government might ordinarily provide for the community in its local government area.

s 42 amd 1993 No. 85 s 160L (amd 1994 No. 61 s 2 sch 2); 2008 No. 29 s 20; 2011 No. 26 s 33

43Authority to grant fee simple in transferable land

The Governor in Council may, under this Act and the Land Act, grant transferable land in fee simple.

s 43 amd 2008 No. 29 s 3 sch

44Deed of grant takes effect on delivery

(1)A deed of grant prepared under this division takes effect on the delivery of the deed of grant to the grantee.

(2)On delivery of the deed of grant to the grantee, the land the subject of the deed becomes Aboriginal land that is transferred land.

(3) Subsection (1) has effect despite any other Act or any rule of law or practice.

s 44 amd 2011 No. 26 s 35

45Existing interests

(1)If transferable land was, immediately before becoming Aboriginal land under this division, subject to an interest or benefited by an easement, the interest continues in force or the land continues to be benefited by the easement.

(2)Without limiting subsection (1), if transferable land was, immediately before becoming Aboriginal land under this division, the subject of—

(a)a 1985 Act granted lease or a new Act granted lease under the new Land Holding Act; or

(b)a lease under the Land Act; or

(c)a trustee (Aboriginal) lease;

the trustee of the land is, by operation of this section, substituted for the lessor as a party to the lease.

(3)The terms of a lease mentioned in subsection (2) are not affected by the operation of this section or any other provision of this Act and, for the purposes of those terms, the Land Act continues to apply to a lease under that Act, with all necessary modifications and such modifications as are prescribed, as if the lease continued to be such a lease and the trustee of the land were the lessor.

(4)However, subsection (5) applies to an interest in transferable land (the previous interest) that, under an available State land agreement, is to cease on the grant of the land under this part and a new interest granted by the trustee of the land is to have effect in substitution for the previous interest on the grant of the land.

(5)Despite subsections (1) to (3), on the grant of the land the previous interest ceases.

(6) Subsection (5) applies despite any other Act.

(7)In this section—

interest includes—

(a)native title; and

(b)a right of a local government to access, occupy, use or maintain a facility on the land; and

(c)an interest in favour of the State or Commonwealth other than an interest that is not registered.

s 45 amd 1991 No. 76 s 7; 1993 No. 85 s 161 (retro); 1994 No. 81 s 527 sch 5; 2008 No. 29 s 22; 2011 No. 26 s 36; 2013 No. 2 s 100; 2013 No. 23 s 6; 2013 No. 2 s 103; 2014 No. 45 s 58 sch 1 pt 2

45AExisting interests held by local government

(1)This section applies if a local government has an existing interest under section 45 to access, occupy, use or maintain a facility on Aboriginal land.

(2)If the local government does not intend to continue to access, occupy, use or maintain the facility, the local government must give the trustee of the land notice of that fact.

(3)If subsection (2) does not apply, the local government and the trustee of the land must use their best endeavours to provide for the continued access, occupation, use or maintenance of the facility under a registered interest in the land given by the trustee of the land.

s 45A ins 2013 No. 2 s 101

amd 2013 No. 23 s 352 sch 1 pt 1

47Cancellation of deed of grant in trust

(1)This section applies if a deed of grant (the new deed) over all or part of the land comprised in a deed of grant in trust takes effect under section 44.

(2)The deed of grant in trust is cancelled to the extent of the new deed.

s 47 ins 1991 No. 76 s 8

amd 2004 No. 37 s 86 sch 1; 2008 No. 29 s 23; 2009 No. 17 s 331 sch 1

sub 2013 No. 23 s 7

49Land Court may resolve difficulties

(1)If a difficulty arises in—

(a)the application of this division to a particular matter; or

(b)the application, to a particular matter, of a provision of another Act because of the operation of this division;

the Land Court may, on the application of the chief executive or an interested person, make such order as it considers proper to resolve the difficulty.

(2)An order made under subsection (1) has effect despite anything contained in this division or in an Act in force immediately before the commencement of this section.

s 49 amd 2011 No. 26 s 39

div hdg sub 2011 No. 26 s 40

50Application to hold Aboriginal land for native title holders

(1)This section applies if—

(a)a CATSI corporation that is the trustee of Aboriginal land becomes a registered native title body corporate after it became the trustee of the land; and

(b)under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land; and

(c)the registered native title body corporate is registered on the National Native Title Register for the determination.

(2)The registered native title body corporate may apply to the Minister in the approved form for an approval to hold the land under this Act for the native title holders of the land.

s 50 amd 2002 No. 74 s 90 sch; 2005 No. 8 s 47; 2007 No. 48 s 34

sub 2008 No. 29 s 24; 2011 No. 26 s 40

51Decision on application

(1)The Minister must consider an application made under section 50 and decide—

(a)to give the approval; or

(b)to refuse the application.

(2)In considering the application, the Minister must have regard to—

(a)whether any Aboriginal people particularly concerned with the land, other than native title holders of the land, may be adversely affected by the approval; and

(b)if the Minister is satisfied Aboriginal people particularly concerned with the land will be adversely affected by the approval—any action the registered native title body corporate intends to take to address the concerns of the Aboriginal people.

(3)The Minister may give the approval only if, having regard to the matters mentioned in subsection (2), the Minister is satisfied it is appropriate in the circumstances to give the approval.

s 51 sub 2008 No. 29 s 24; 2011 No. 26 s 40

52Notices about decision

(1)The Minister must give the registered native title body corporate notice of the Minister’s decision under section 51.

(2)If the Minister gives the approval, the chief executive must notify the approval by gazette notice.

(3)The gazette notice must—

(a)state the name of the registered native title body corporate; and

(b)include a description of the Aboriginal land held by it that relates to the approval.

(4)As soon as practicable after the gazette notice is published, the chief executive must give the registrar of titles notice of the approval.

(5)The notice must include a description of the Aboriginal land held by the registered native title body corporate for the native title holders of the land.

(6)On receiving the notice, the registrar must record in the freehold land register that the land is held under this Act by the registered native title body corporate for the native title holders of the land.

(7)In this section—

description, in relation to land, means the description of the land as shown in the freehold land register.

s 52 amd 2008 No. 29 s 25; 2009 No. 3 s 438

sub 2011 No. 26 s 40

amd 2010 No. 31 s 493 sch 2 pt 4 (amdt could not be given effect); 2013 No. 23 s 352 sch 1 pt 1

53Effect of gazette notice

On publication of the gazette notice, the registered native title body corporate is taken to hold the land under this Act for the native title holders of the land.

s 53 ins 2011 No. 26 s 40

54Resource reservations under resource Acts

A deed of grant of transferred land must contain the reservations to the State taken to be contained in the grant under the following—

•the Geothermal Energy Act 2010 , section 29

•the Greenhouse Gas Storage Act 2009 , section 28

•the Mineral Resources Act 1989 , section 8

•the Petroleum Act 1923 , section 10

•the Petroleum and Gas (Production and Safety) Act 2004 , section 27.

s 54 amd 2008 No. 29 s 3 sch

sub 2010 No. 31 s 494

55Reservations of forest products and quarry material etc.

(1)A deed of grant of transferred land may contain a reservation to the State of forest products or quarry material above, on or below the surface of the land only if it is declared by regulation that—

(a)the forest products or quarry material is of vital State interest; and

(b)the rights in the forest products or quarry material are reserved to the State.

(2)If a deed of grant of transferred land does not contain a reservation of particular forest products or quarry material above, on or below the land, a regulation may declare that—

(a)the forest products or quarry material are of vital State interest; and

(b)rights in the forest products or quarry material are acquired by the State.

(3)If a regulation is made under subsection (1) or (2), the trustee of the land is entitled to be paid by the State such reasonable compensation because of the reservation or acquisition as is agreed between the State and the trustee or, failing agreement, as is determined by the Land Court.

(4)Despite subsection (1), a permit, lease, licence, agreement or contract granted or made under the Forestry Act 1959 , before the day on which land became transferred land, in relation to the getting and selling of forest products or quarry material above, on or below the surface of the land, continues in force as if this section had not been enacted.

s 55 prev s 55 om 2011 No. 26 s 45

pres s 55 amd 1991 No. 76 s 9; 1993 No. 85 s 161B (amd 1994 No. 61 s 2 sch 2); 2008 No. 29 s 26; 2011 No. 26 s 189 sch

56Duly made claims

A claim for claimable land must comply with the following provisions in order to be duly made—

(a) section 57;

(b) section 58;

(c) section 59;

(d) section 60.

s 56 amd 2004 No. 4 s 57 sch

57Who may make a claim

(1)A group of Aboriginal people may make a claim for an area of claimable land.

(2)The claim may be made by members of a group of Aboriginal people on behalf of those Aboriginal people and other Aboriginal people who are members of the group.

58Grounds on which claim may be made

A claim under this Act may only be made on 1 or more of the following grounds—

(a)traditional affiliation;

(b)historical association.

s 58 amd 2008 No. 29 s 3 sch; 2011 No. 26 s 41

59How claim is to be made

A claim under this Act must—

(a)be made by written application to the chief executive; and

(b)be in the appropriate form made available by the chief executive; and

(c)include—

(i)a description of the land claimed and a map showing clearly the location of the land; and

(ii)a statement of the ground on which the claim is made; and

(iii)a description of the group of Aboriginal people making the claim; and

(iv)a statement of the responsibilities in relation to the land that the claimants agree to assume if the land is granted because of the claim.

s 59 amd 2011 No. 26 s 42

60Time limit for making of claims

A claim under this Act must be made not later than 15 years after the commencement of section 57.

Note—

The time for making a claim ended on 22 December 2006.

s 60 amd 2008 No. 29 s 27

61Deciding whether claim duly made

(1)If a claim is made to the chief executive, the chief executive must decide whether the claim appears to be duly made.

(2)If the chief executive is satisfied that the claim appears to be duly made, the chief executive must accept the application and refer the claim to the Land Tribunal.

(3)If the chief executive is not satisfied, the chief executive must refuse to accept the application.

(4)The chief executive must notify the claimants, in writing, of his or her decision.

(5)If the chief executive refuses to accept the application, the chief executive must also notify the claimants, in writing, of his or her reasons for refusing to accept the application.

(6)If the chief executive refuses to accept the application, the claimants may ask the chairperson of the Land Tribunal to decide whether the claim is duly made.

(7)If the chairperson decides that the claim is duly made, the chairperson must direct the chief executive to accept the application under subsection (2).

(8)If the chairperson decides that a claim is not duly made, the chairperson must notify the claimants, in writing, of his or her reasons for refusing to accept the application.

(9)Despite subsection (1), if a recommendation has been made to the Minister under section 71 for a grant in fee simple, another claim may not be duly made over the same land.

(10)Nothing in this section prevents the chief executive from accepting an application if—

(a)a claim (the repeat claim) has been made to the chief executive under section 59 and it appears to the chief executive that the land to which the claim relates is completely or partly the same as land that has previously been claimed (the previous claim); and

(b)no recommendation was made to the Minister under section 71 about the previous claim.

s 61 amd 1993 No. 85 s 161C (amd 1994 No. 61 s 2 sch 2); 2011 No. 26 s 43

62Tribunal to notify making of claims

(1)As soon as practicable after a claim is referred to the Land Tribunal, the tribunal must comply with this section.

(2)The tribunal must cause copies of the application to be made available for public inspection at offices of the tribunal during ordinary working hours and at such other places as it considers appropriate.

(3)The tribunal must publish notice of the claim in the gazette, a newspaper circulating throughout the State and such regional newspapers as the tribunal considers appropriate.

(4)The tribunal must give notice of the claim, by letter or such other means as it considers more effective, to each person that it is aware is or may be an interested person.

(5)A notice under subsection (3) or (4) must include a statement to the effect that—

(a)copies of the application are available for public inspection at places, and during times, specified in the notice; and

(b)interested persons may, within the period specified in the notice, apply to the tribunal to be made a party to the proceeding for the hearing of the claim; and

(c)any other group of Aboriginal people may, within that period, make a claim for the whole or part of the land the subject of the claim or for such an area and additional area of claimable land.

(6)The period specified in a notice for the purposes of subsection (5) (b) must be a period of not less than 60 days after the publication of notice of the claim in the gazette.

s 62 amd 2013 No. 23 s 352 sch 1 pt 1; 2013 No. 2 s 104 (amdt could not be given effect)

63Joint hearing of claims

If—

(a)a claim (the first claim) is duly made under this Act by a group of Aboriginal people for an area of claimable land; and

(b)a claim (the subsequent claim) is duly made under this Act by another group of Aboriginal people for the whole or a part of the area of claimable land (whether or not an additional area of claimable land is also claimed); and

(c)the subsequent claim is referred to the Land Tribunal within the period specified in the notice published under section 62 in relation to the first claim or before the hearing of the first claim has started;

then—

(d)the first claim and the subsequent claim are to be heard and determined together; and

(e)if the subsequent claim does not include an additional area of claimable land—section 62 does not apply to the subsequent claim.

s 63 amd 1993 No. 85 s 161D (amd 1994 No. 61 s 2 sch 2)

64Repeat claims

If a repeat claim mentioned in section 61 (10) has been referred to the Land Tribunal, the tribunal may hear the repeat claim only if a presiding member is satisfied that the repeat claim could be established on 1 or more grounds mentioned in section 65 or 66 because—

(a)the basis on which the repeat claim is made is substantially different to the basis on which the previous claim was made; or

(b)information has become available to the tribunal that was not previously available and, if the information had previously been available to the tribunal, it may have affected the decision of the tribunal on the previous claim.

s 64 prev s 64 amd 2008 No. 29 s 29

om 2011 No. 26 s 49

pres s 64 ins 1993 No. 85 s 161E (amd 1994 No. 61 s 2 sch 2)

amd 2011 No. 26 s 44

65Establishment of claim on ground of traditional affiliation

(1)A claim by a group of Aboriginal people for an area of claimable land on the ground of traditional affiliation is established if the Land Tribunal is satisfied that the members of the group have a common connection with the land based on spiritual and other associations with, rights in relation to, and responsibilities for, the land under Aboriginal tradition.

(2)In determining the claim, the tribunal must consult with, and consider the views of, the persons recognised under Aboriginal tradition as the elders of the group of Aboriginal people.

66Establishment of claim on ground of historical association

(1)A claim by a group of Aboriginal people for an area of claimable land on the ground of historical association is established if the Land Tribunal is satisfied that the group has an association with the land based on them or their ancestors having, for a substantial period, lived on or used—

(a)the land; or

(b)land in the district or region in which the land is located.

(2)Without limiting subsection (1), the claim may be established whether or not all or a majority of the members of the group have themselves lived on or used such land.

(3)In determining the claim, the tribunal must consult with, and consider the views of, the persons recognised under Aboriginal tradition as the elders of the group of Aboriginal people.

67Claim may be established for only part of land claimed

A claim by a group of Aboriginal people for an area of claimable land may be established for a part only of the land.

s 67 prev s 67 ins 1993 No. 85 s 161G (amd 1994 No. 61 s 2 sch 2)

om 2011 No. 26 s 52

68Claim may be established on more than 1 ground

A claim by a group of Aboriginal people for an area of claimable land may be established on more than 1 ground.

s 68 prev s 68 om 2011 No. 26 s 52

69Time at which it is to be decided whether land is claimable land

The question whether land claimed under this Act is claimable land is to be decided as at the beginning of the day on which the relevant claim for the land was made under this part.

s 69 amd 2011 No. 26 s 46

70Amendment of claim

(1)A claim under this Act may be amended with the leave of the Land Tribunal.

(2)If a claim is amended to include land that was not claimed in the original claim, section 62 applies as if a separate claim had been made for that land and the claim had been referred to the tribunal.

s 70 prev s 70 om 2011 No. 26 s 54

71Recommendation to Minister

(1)Subject to section 72, if a claim by a group of Aboriginal people for an area of claimable land is established, the Land Tribunal must recommend to the Minister that the land be granted in fee simple to the group.

(2)When the tribunal makes a recommendation under subsection (1), the tribunal must also make recommendations to the Minister as to the entity, or the persons who are to be represented by an entity, that should be appointed to be the grantee of the land as trustee for the benefit of the group of Aboriginal people concerned.

(3)In making recommendations under subsection (2), the tribunal must, unless it is satisfied that exceptional circumstances exist that require it to do otherwise, act in a manner that is consistent with—

(a)any Aboriginal tradition applicable to the land; and

(b)the views of the group of Aboriginal people concerned so far as they are not inconsistent with any such Aboriginal tradition.

(4)When the tribunal makes a recommendation under subsection (1), the tribunal must advise the Minister, in writing, in relation to each of the following matters—

(a)the number of Aborigines who will be advantaged by a grant of the land, and the nature and extent of the advantage that will accrue to them;

(b)the responsibilities in relation to the land that the group of Aboriginal people concerned agree to assume if the land is granted because of the claim, and how those responsibilities should be expressed in any deed of grant for the land;

(c)the detriment to persons or communities (including other Aboriginal groups and Torres Strait Islanders) that might result from a grant of the land;

(d)the effect (if any) that a grant of the land is likely to have on the existing and proposed patterns of land usage in the region of the land.

(5)In this section—

Minister means the Minister administering the Land Act.

s 71 amd 2003 No. 77 s 4; 2008 No. 29 s 3 sch; 2011 No. 26 s 47

72Resolution of conflicting claims

(1)Subject to subsection (2), if claims by 2 or more groups of Aboriginal people for the same area of claimable land are established on the same ground, the Land Tribunal must recommend to the Minister that the land be granted jointly to the groups.

(2)If—

(a)more than 1 claim is established; and

(b)each of the competing claims is established on 1 or more grounds; and

(c)1 or more of the claims is established on the ground of traditional affiliation;

a recommendation must not be made in favour of any other group on the ground of historical association.

(3)In this section—

Minister means the Minister administering the Land Act.

s 72 prev s 72 amd 1992 No. 36 s 1 sch 2

om 2008 No. 29 s 31

pres s 72 amd 1993 No. 85 s 161F (amd 1994 No. 61 s 2 sch 2); 2003 No. 77 s 5; 2008 No. 29 s 3 sch; 2011 No. 26 s 48

73Notification of parties

(1)If a claim by a group of Aboriginal people for an area of claimable land is established on 1 or more grounds, the Land Tribunal must notify each party to the proceeding, in writing—

(a)that the claim has been so established; and

(b)of the recommendations (if any) made to the Minister in relation to the claim.

(2)If a claim by a group of Aboriginal people for an area of claimable land is not established on 1 or more grounds, the Land Tribunal must notify each party to the proceeding, in writing, that the claim has not been so established.

(3)In this section—

Minister means the Minister administering the Land Act.

s 73 amd 2003 No. 77 s 6; 2008 No. 29 s 3 sch

pt 6 div 5 hdg sub 1992 No. 20 s 159 sch 2 (prev located in orig pt 5)

om 2008 No. 29 s 3 sch

74Deeds of grant to be prepared

(1)If—

(a)the Land Tribunal recommends to the Minister that an area of land be granted in fee simple to a group of Aboriginal people; and

(b)the Minister is satisfied that the land, or a part of the land, should be so granted to the group;

the Minister must direct the chief executive to prepare a deed of grant in fee simple over the land or that part of the land.

(2)The land need not be surveyed but may be described in the deed of grant in such manner as the Minister directs.

(3)The deed of grant must show that the land is held by the grantees for the benefit of the group of Aboriginal people and their ancestors and descendants.

(4)The deed of grant must specify—

(a)the ground on which the Land Tribunal recommended that the land be granted; and

(b)the responsibilities that the group of Aboriginal people have agreed to assume in relation to the land.

(5) Subsections (2), (3) and (4) have effect despite any other Act or any rule of law or practice.

s 74 prev s 74 om 2011 No. 26 s 56

pres s 74 amd 2008 No. 29 s 28

75Appointment of grantee

(1)The Minister may appoint the following entities as grantee of land the subject of a deed of grant prepared under section 74—

(a)a CATSI corporation that is qualified to hold the land; or

(b)a land trust.

(2)However, the Minister may appoint a CATSI corporation that is a registered native title body corporate as a grantee of land under subsection (1) only if—

(a)under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land; and

(b)the registered native title body corporate is registered on the National Native Title Register for the determination.

(3)Before making the appointment, the Minister—

(a)must consult with, and consider the views of, the group of Aboriginal people concerned; and

(b)unless the Minister is satisfied that exceptional circumstances exist that require the Minister to do otherwise, must have regard to—

(i)any Aboriginal tradition applicable to the land; and

(ii)the views of the group to the extent the views are not inconsistent with any Aboriginal tradition applicable to the land.

(4)Also, in considering whether to appoint a registered native title body corporate as the proposed grantee for the land, the Minister may have regard to any matter the Minister considers relevant to the proposed appointment, including, for example—

(a)whether any of the group of Aboriginal people concerned, other than the native title holders of the land, may be adversely affected by the proposed appointment; and

(b)if the Minister is satisfied any of the group of Aboriginal people concerned will be adversely affected by the proposed appointment—any action the registered native title body corporate intends to take to address the concerns of the Aboriginal people.

s 75 amd 2007 No. 48 s 35

sub 2011 No. 26 s 50

76Authority to grant fee simple in claimable land

The Governor in Council may, under this Act and the Land Act, grant claimable land in fee simple.

s 76 prev s 76 amd 2002 No. 74 s 90 sch; 2007 No. 48 s 36

sub 2008 No. 29 s 33

om 2011 No. 26 s 58

pres s 76 amd 2008 No. 29 s 3 sch; 2011 No. 26 s 51

77Deed of grant takes effect on delivery

(1)A deed of grant prepared under this division takes effect on the delivery of the deed of grant to the grantee.

(2)On delivery of the deed of grant to the grantee, the land the subject of the deed becomes granted land and, if the land is not already Aboriginal land, becomes Aboriginal land.

(3) Subsection (1) has effect despite any other Act or any rule of law or practice.

s 77 prev s 77 sub 2008 No. 29 s 33

om 2011 No. 26 s 58

pres s 77 amd 2011 No. 26 s 53

78Existing interests

(1)If granted land was, immediately before becoming Aboriginal land under this division, subject to an interest or benefited by an easement, the interest continues in force or the land continues to be benefited by the easement.

(2)In this section—

interest includes native title, but does not include an interest in favour of the State or Commonwealth that is not registered.

s 78 prev s 78 amd 2008 No. 29 s 34; 2009 No. 3 s 439

om 2011 No. 26 s 58

pres s 78 amd 1993 No. 85 s 162 (retro); 2008 No. 29 s 30

amd 2010 No. 31 s 493 sch 2 pt 4 (amdt could not be given effect)

79Cancellation of existing deed of grant

(1)If—

(a)land is the subject of a deed of grant issued under part 4 (the existing deed); and

(b)a deed of grant (the new deed) over the whole or a part of the land takes effect under section 77;

the existing deed is cancelled, to the extent of the new deed, by operation of this section.

(2)The Minister must cause notice to be given to the registrar of titles of the day of delivery of the new deed to the grantees and the registrar must note the cancellation of the existing deed in the register accordingly.

(3)The trustee that holds the existing deed must, on receipt of notice by the Minister so to do, deliver the existing deed to the chief executive within such reasonable period, as is specified in the notice.

(4)If the existing deed is cancelled only in relation to part of the land, the chief executive must prepare and issue to the trustee that holds the deed a deed of grant under the Land Act (the replacement deed) over the remaining part of the land.

(5)The replacement deed is, for the purposes of this Act, taken to be a deed of grant prepared and issued under part 4.

(6)The chief executive must endorse on the replacement deed, in the proper order of priority, the instruments under which existing relevant interests arose.

s 79 prev s 79 amd 2008 No. 29 s 35

om 2011 No. 26 s 58

pres s 79 amd 2008 No. 29 s 31; 2011 No. 26 s 55; 2013 No. 23 s 352 sch 1 pt 1

80Land Court may resolve difficulties

(1)If a difficulty arises in—

(a)the application of this division to a particular matter; or

(b)the application, to a particular matter, of a provision of another Act because of the operation of this division;

the Land Court may, on the application of the chief executive or an interested person, make such order as it considers proper to resolve the difficulty.

(2)An order made under subsection (1) has effect despite anything contained in this part or in an Act in force immediately before the commencement of this section.

s 80 amd 2011 No. 26 s 57

div hdg prev div 2 hdg om 2011 No. 26 s 58 (prev located in orig pt 5)

pt 6 div 2 sdiv 1

sdiv 1 (ss 77A–77B) ins 2008 No. 29 s 33 (prev located in orig pt 5 div 2)

om 2011 No. 26 s 58

pt 6 div 2 sdiv 2

sdiv 2 (ss 77C) ins 2008 No. 29 s 33 (prev located in orig pt 5 div 2)

om 2011 No. 26 s 58

pt 6 div 2 sdiv 3

sdiv 3 (ss 77D–77N) ins 2008 No. 29 s 33 (prev located in orig pt 5 div 2)

om 2011 No. 26 s 58

pt 6 div 2 sdiv 4

sdiv 4 (ss 77O–77Y) ins 2008 No. 29 s 33 (prev located in orig pt 5 div 2)

om 2011 No. 26 s 58

pt 6 div 2 sdiv 5

sdiv 5 (ss 77Z–77ZA) ins 2008 No. 29 s 33 (prev located in orig pt 5 div 2)

om 2011 No. 26 s 58

pt 6 div 2 sdiv 6

sdiv 6 (ss 77ZB–77ZE) ins 2008 No. 29 s 33 (prev located in orig pt 5 div 2)

om 2011 No. 26 s 58

pt 6 div 2 sdiv 7

sdiv 7 (ss 77ZF) ins 2008 No. 29 s 33 (prev located in orig pt 5 div 2)

om 2011 No. 26 s 58

pt 6 div 2 sdiv 8

sdiv 8 (ss 77ZG–77ZH) ins 2008 No. 29 s 33 (prev located in orig pt 5 div 2)

om 2011 No. 26 s 58

81Resource reservations under other Acts

A deed of grant of granted land must contain the reservations to the State taken to be contained in the grant under the following—

•the Geothermal Energy Act 2010 , section 29

•the Greenhouse Gas Storage Act 2009 , section 28

•the Mineral Resources Act 1989 , section 8

•the Petroleum Act 1923 , section 10

•the Petroleum and Gas (Production and Safety) Act 2004 , section 27.

s 81 amd 2008 No. 29 s 3 sch; 2011 No. 26 s 59

sub 2010 No. 31 s 495

amd 2014 No. 45 s 6

82Reservations of forest products and quarry material etc.

(1)A deed of grant of granted land that was transferred land may contain a reservation to the State of forest products or quarry material above, on or below the surface of the land only if it is declared by regulation that—

(a)the forest products or quarry material is of vital State interest; and

(b)the rights in the forest products or quarry material are reserved to the State.

(2)A deed of grant of granted land that was not transferred land must contain a reservation to the State of—

(a)all forest products; and

(b)all quarry material;

above, on and below the surface of the land.

(3)Despite subsection (1), a permit, lease, licence, agreement or contract granted or made under the Forestry Act 1959 , before the day on which transferred land became granted land, in relation to the getting and selling of forest products or quarry material above, on or below the surface of the land, continues in force as if this section had not been enacted.

(4)If a deed of grant of granted land that was transferred land does not contain a reservation of particular forest products or quarry material above, on or below the land, a regulation may declare that—

(a)the forest products or quarry material is of vital State interest; and

(b)the rights in the forest products or quarry material are acquired by the State.

(5)If a regulation is made under subsection (1) or (4), the trustee of the land is entitled to be paid by the State such reasonable compensation because of the reservation or acquisition as is agreed on between the State and the trustee or, failing agreement, as is determined by the Land Court.

s 82 amd 1991 No. 76 s 10; 1993 No. 85 s 162A (amd 1994 No. 61 s 2 sch 2); 2008 No. 29 s 36; 2011 No. 26 s 60

83Rights of access preserved

(1)If—

(a)land that is an area of coast becomes Aboriginal land because of a claim under this Act; and

(b)a right of access to or across the area (whether by persons generally or particular persons) existed immediately before the land became claimable land;

the right of access continues in force as if the land had not become Aboriginal land.

(2)In this section—

coast means all land, including the bed and banks of any river, stream, watercourse, lake or other body of water, that is—

(a)above the highest astronomical tide mark and within 400m, measured by the shortest distance, of that mark; or

(b)below the highest astronomical tide mark.

highest astronomical tide means the highest level of the tides that can be predicted to occur under average meteorological conditions and under any combination of astronomical conditions.

s 83 amd 2008 No. 29 s 37

pt hdg ins 2011 No. 26 s 61

84Keeping register of entities holding Aboriginal land

(1)The chief executive must keep a register of entities that hold Aboriginal land (the Aboriginal land holding entity register).

(2)The register must contain the following information for each entity—

(a)the entity’s name, address for the service of documents and contact telephone number;

(b)a description of the Aboriginal land held by the entity.

(3)If the entity is a land trust, the register must also contain all the following information about the land trust—

(a)the names and addresses of all the current members of the land trust;

(b)the name of each member of the land trust’s executive committee, and the position held by the member;

(c)a contact telephone number for the chairperson and secretary of the land trust;

(d)a copy of the land trust’s adopted rules;

(e)copies of annual financial statements and audit reports the chief executive receives from the land trust under this Act;

(f)a statement about whether or not the land trust has, for each financial year, operated in compliance with the Act.

Note—

Under section 258, the chief executive must record in the register whether or not a land trust has operated in compliance with the Act.

(4)The chief executive may keep the register in the form the chief executive considers appropriate, including, for example, in electronic form.

s 84 ins 2011 No. 26 s 61

85Giving information for register to the chief executive

(1)Each entity, other than a land trust, that holds Aboriginal land must—

(a)as soon as practicable after the end of each financial year, give to the chief executive the information mentioned in section 84 (2) for the entity; and

(b)as soon as practicable after any of the information changes—give the chief executive a notice of the change.

(2)A land trust must give to the chief executive all the information the chief executive reasonably requires to ensure the information in the register about the land trust is accurate.

s 85 ins 2011 No. 26 s 61

amd 2013 No. 23 s 352 sch 1 pt 1

86Obtaining information in register

(1)A person may, in the approved form, ask the chief executive to give the person information included in the Aboriginal land holding entity register.

(2)The chief executive must, if asked under subsection (1), give the person the information included in the publicly available part of the register.

(3)The chief executive may, if asked under subsection (1), give the person the additional information for a land trust only if the chairperson of the land trust consents in writing to the giving of the information.

(4)In this section—

additional information, for a land trust, means the following—

(a)the names of all the current members of the land trust;

(b)the information mentioned in section 84 (3) (b), (d) or (e).

publicly available part, of the Aboriginal land holding entity register, means the part of the register containing all the following information—

(a)the information mentioned in section 84 (2);

(b)for a land trust—

(i)the names of the chairperson and secretary of the land trust; and

(ii)the information mentioned in section 84 (3) (f).

s 86 ins 2011 No. 26 s 61

pt hdg ins 2011 No. 26 s 61

div 1 (ss 87–88) ins 2011 No. 26 s 61

87Purpose of pt 8

The purpose of this part is to provide for—

(a)particular Aboriginal land to vest in the State; and

(b)the transfer of Aboriginal land that vests in the State to another entity to hold as Aboriginal land.

div 1 (ss 87–88) ins 2011 No. 26 s 61

88Application of pt 8

This part applies to Aboriginal land that is or was held by a CATSI corporation for the benefit of Aboriginal people particularly concerned with the land and their ancestors and descendants, if—

(a)under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cwlth)—

(i)the corporation stops being registered; and

(ii)the land is vested in the State; or

(b)the corporation is no longer qualified to hold the land.

div 1 (ss 87–88) ins 2011 No. 26 s 61

div 2 (ss 89–95) ins 2011 No. 26 s 61

89Vesting of land in the State

(1)If the CATSI corporation is no longer qualified to hold the land, the Minister may, by gazette notice, declare that the land vests in the State.

(2)The gazette notice must—

(a)include a description of the land; and

(b)state the reason that the CATSI corporation is no longer qualified to hold the land.

div 2 (ss 89–95) ins 2011 No. 26 s 61

90How land is held by the State

(1)This section applies if—

(a)the land vests in the State under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cwlth); or

(b)the land vests in the State under section 89.

(2)The land—

(a)vests in the State in fee simple; and

(b)the State holds the land for the benefit of the persons for whose benefit the land was held immediately before it vested in the State.

div 2 (ss 89–95) ins 2011 No. 26 s 61

91Minister to transfer land as soon as practicable

(1)The Minister must, by gazette notice as soon as practicable after the land vests in the State, transfer the land under this part.

(2)The gazette notice must include—

(a)a description of the land being transferred; and

(b)the name of the entity to whom the land is transferred.

div 2 (ss 89–95) ins 2011 No. 26 s 61

92Transfer to registered native title body corporate to hold for native title holders

(1)This section applies if—

(a)under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land; and

(b)there is a registered native title body corporate for the determination.

(2)The Minister may, with the consent of the registered native title body corporate, transfer the land to it.

(3)If the Minister transfers the land under this section to a registered native title body corporate, the body corporate holds the land for the native title holders of the land the subject of the determination mentioned in subsection (1) (a).

(4)In considering whether to transfer the land to a registered native title body corporate, the Minister may have regard to any matter the Minister considers relevant to the proposed transfer, including, for example—

(a)whether any Aboriginal people particularly concerned with the land, other than the native title holders of the land, may be adversely affected by the proposed transfer; and

(b)if the Minister is satisfied any Aboriginal people particularly concerned with the land will be adversely affected by the proposed transfer—any action the registered native title body corporate intends to take to address the concerns of the Aboriginal people.

div 2 (ss 89–95) ins 2011 No. 26 s 61

93Transfer to entity to hold for benefit of Aboriginal people

(1)This section applies if the Minister does not transfer the land under section 92 to a registered native title body corporate.

(2)The Minister may transfer the land to—

(a)a CATSI corporation that is qualified to hold the land; or

(b)a land trust.

(3)However, the Minister may transfer the land to a CATSI corporation that is a registered native title body corporate under subsection (2) only if—

(a)under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land; and

(b)the registered native title body corporate is registered on the National Native Title Register for the determination.

(4)Before transferring the land, the Minister must consult with, and consider the views of—

(a)if the land is transferred land—Aboriginal people particularly concerned with the land; or

(b)if the land is granted land—the group of Aboriginal people for whom the land is held.

(5)Also, in considering whether to transfer the land to a registered native title body corporate, the Minister may have regard to any matter the Minister considers relevant to the proposed transfer, including, for example—

(a)whether any Aboriginal people particularly concerned with the land may be adversely affected by the proposed transfer; and

(b)if the Minister is satisfied any Aboriginal people particularly concerned with the land will be adversely affected by the proposed transfer—any action the registered native title body corporate intends to take to address the concerns of the Aboriginal people.

(6)In deciding to transfer land under this section, the Minister must have regard to any Aboriginal tradition applicable to the land.

(7)If the land is transferred under this section, the entity to whom the land is transferred holds the land for the benefit of the persons for whose benefit the land was held immediately before it was transferred.

div 2 (ss 89–95) ins 2011 No. 26 s 61

94Procedure for transferring land

(1)Before transferring the land, the Minister must—

(a)publish notice of the Minister’s intention to transfer the land in a newspaper or other publication circulating generally in the area in which the land is situated; and

(b)consider all representations made to the Minister under subsection (4).

(2)The notice must—

(a)include a description of the land; and

(b)state the following—

(i)the name of the proposed transferee;

(ii)if the land is transferred land—that an Aboriginal person particularly concerned with the land may make written representations to the Minister about the proposed transfer;

(iii)if the land is granted land—that the group of Aboriginal people for whom the land is held may make written representations to the Minister about the proposed transfer;

(iv)the place where the representations may be made;

(v)the period in which the representations must be made.

(3)The stated period must end at least 28 days after the notice is published.

(4)A person, or the group, mentioned in subsection (2) (b) (ii) or (iii) may make written representations about the proposed transfer to the Minister within the stated period.

div 2 (ss 89–95) ins 2011 No. 26 s 61

95Effect of gazette notice about transfer

The transfer of the land under this part has effect on publication of the gazette notice about the transfer under section 91.

div 2 (ss 89–95) ins 2011 No. 26 s 61

div hdg ins 2011 No. 26 s 61

96Notice about land

(1)If land vests in the State or is transferred under this part, the chief executive must give the registrar notice of the vesting or transfer.

(2)The notice must include particulars of the land the subject of the vesting or transfer.

(3)On receiving the notice, the registrar must record in the freehold land register the vesting or transfer.

s 96 ins 2011 No. 26 s 61

amd 2013 No. 23 s 352 sch 1 pt 1

pt hdg ins 2007 No. 48 s 38

sub 2011 No. 26 s 61

div hdg ins 2011 No. 26 s 61

amd 2014 No. 45 s 8

97Power to deal with Aboriginal land

(1)This section applies subject to this part and parts 2A and 10.

(2)The trustee of Aboriginal land may—

(a)grant, transfer or otherwise create an interest in, or in relation to, the land in the way the trustee considers appropriate, including, for example, by—

(i)granting a lease or licence over all or a part of the land; or

(ii)consenting to the creation of a mining interest in the land; or

(iii)granting an easement over the land; or

(iv)entering into a conservation agreement under the Nature Conservation Act 1992 , section 45, for the land; or

(v)entering into an agreement with the State or the Commonwealth in relation to the getting and sale of forest products or quarry material above, on or below the land; or

(b)dedicate a part of the land to public use by registering a plan of subdivision under the Land Title Act, part 4, division 3; or

(c)surrender all or a part of the land to the State.

Note—

For restrictions on dealing with particular land in the Cape York Peninsula Region, see section 114.

(3)The lessee of a townsite lease may grant a licence for the use of all or a part of the lease land.

s 97 ins 2011 No. 26 s 61

amd 2014 No. 45 s 7

div 2 (s 100) ins 2011 No. 26 s 61

100Prohibition on sale or mortgage of Aboriginal land

The trustee of Aboriginal land must not sell or mortgage the land.

div 2 (s 100) ins 2011 No. 26 s 61

div hdg ins 2011 No. 26 s 61

sdiv hdg ins 2011 No. 26 s 61

103Application of sdiv 1

This subdivision applies to Aboriginal land held by—

(a)a land trust; or

(b)Aurukun Shire Council; or

(c)Mornington Shire Council.

s 103 ins 2011 No. 26 s 61

104Transfer of Aboriginal land

(1)The trustee of the Aboriginal land (the transferor) may transfer all or a part of the land only—

(a)with the Minister’s written approval; and

(b)if the trustee is a land trust—to a following entity (the transferee)—

(i)another land trust;

(ii)a CATSI corporation that is qualified to hold the land;

(iii)Aurukun Shire Council;

(iv)Mornington Shire Council; and

(c)if the trustee is Aurukun Shire Council or Mornington Shire Council—to a CATSI corporation that is qualified to hold the land (also the transferee).

(2)However, the trustee may transfer all or a part of the land to a CATSI corporation that is a registered native title body corporate only if—

(a)under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land; and

(b)the registered native title body corporate is registered on the National Native Title Register for the determination.

(3)If a trustee transfers land under this subdivision—

(a)all improvements on the land must be transferred with the land; and

(b)for a transferee that is a registered native title body corporate—the transferee holds the land for—

(i)the native title holders of the land if the transferor and the transferee agree it is to be held for the native title holders; or

(ii)the benefit of the Aboriginal people particularly concerned with the land and their ancestors and descendants if the land is transferred land and subparagraph (i) does not apply to the transfer; or

(iii)the benefit of the group of Aboriginal people and their ancestors and descendants if the land is granted land and subparagraph (i) does not apply to the transfer; and

(c)for a transferee that is not a registered native title body corporate—the transferee holds the land for—

(i)the benefit of the Aboriginal people particularly concerned with the land and their ancestors and descendants if the land is transferred land; or

(ii)the benefit of the group of Aboriginal people and their ancestors and descendants if the land is granted land; and

(d)if the trustee is a land trust and all the Aboriginal land held by the trustee is transferred to the transferee—

(i)the land trust for the land that is transferred is dissolved; and

(ii)all the assets and liabilities of the trustee become the assets and liabilities of the transferee; and

(e)if the trustee is a land trust and paragraph (d) does not apply—the assets and liabilities of the trustee mentioned in section 106 (1) (a) (ii) become the assets and liabilities of the transferee.

s 104 ins 2011 No. 26 s 61

amd 2013 No. 2 s 105 (amdt could not be given effect)

105Application for approval to transfer

(1)The trustee of the Aboriginal land may apply to the Minister for an approval to transfer all or a part of the land.

(2)The application must—

(a)be in the approved form; and

(b)if the transferor or transferee is a land trust—be accompanied by evidence satisfactory to the Minister of each matter mentioned in section 106 (1) (a), (b) or (c) that applies to the transfer; and

(c)if the transferee is a CATSI corporation—be accompanied by evidence satisfactory to the Minister of the matters mentioned in section 106 (1) (c).

s 105 ins 2011 No. 26 s 61

106Minister’s approval to transfer

(1)The Minister may give an approval to transfer the land only if satisfied—

(a)if the transferor is a land trust—at least 75% of the transferor’s members present at a general meeting of the transferor, agree to the transfer of—

(i)the land; and

(ii)the assets and liabilities of the transferor that will become the assets and liabilities of the transferee; and

(b)if the transferee is a land trust—at least 75% of the transferee’s members present at a general meeting of the transferee, agree to the transfer of—

(i)the land; and

(ii)the assets and liabilities of the transferor that will become the assets and liabilities of the transferee; and

(c)if the transferee is a CATSI corporation—

(i)the transferee agrees to the transfer; and

(ii)the transferee is qualified to hold the land; and

(d)it is appropriate in the circumstances to transfer the land.

(2)If the Minister gives an approval to transfer the land, the chief executive must notify the approval by gazette notice.

(3)The gazette notice must—

(a)include all of the following—

(i)the name of the transferor;

(ii)a description of the land being transferred;

(iii)details of each registered interest in the land being transferred;

(iv)a description of all Aboriginal land, if any, that will be held by the transferor after the transfer;

(v)the name of the transferee;

(vi)a description of all Aboriginal land that will be held by the transferee after the transfer; and

(b)if the transferor is a land trust that is dissolved under section 104 (3) (d) (i) because of the transfer—state the land trust will be dissolved.

(4)In this section—

description, in relation to land, means the description of the land as shown in the freehold land register.

registered interest means an interest registered under the Land Title Act.

s 106 ins 2011 No. 26 s 61

107Effect of gazette notice about transfer

On publication of the gazette notice the Aboriginal land proposed to be transferred may be transferred to the transferee.

s 107 ins 2011 No. 26 s 61

sdiv 2 (ss 108–112) ins 2011 No. 26 s 61

108Application of sdiv 2

(1)This subdivision applies to Aboriginal land held by a CATSI corporation.

(2)However, this subdivision does not apply to a transfer of Aboriginal land from a registered native title body corporate (the original body corporate) to another registered native title body corporate that, under the Commonwealth Native Title Act, replaces the original body corporate.

sdiv 2 (ss 108–112) ins 2011 No. 26 s 61

109Transfer of Aboriginal land

(1)The trustee of the Aboriginal land (the transferor) may transfer all or a part of the land only—

(a)with the Minister’s written approval; and

(b)to another CATSI corporation that is qualified to hold the land (the transferee).

(2)However, the trustee may transfer all or a part of the land to a CATSI corporation that is a registered native title body corporate only if—

(a)under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land; and

(b)the registered native title body corporate is registered on the National Native Title Register for the determination.

(3)The transferee holds the land for—

(a)the native title holders of the land, if—

(i)the transferee is a registered native title body corporate; and

(ii)the transferor and the transferee agree it is to be held for the native title holders; or

(b)otherwise—

(i)the benefit of the Aboriginal people particularly concerned with the land and their ancestors and descendants if the land is transferred land; or

(ii)the benefit of the group of Aboriginal people and their ancestors and descendants if the land is granted land.

sdiv 2 (ss 108–112) ins 2011 No. 26 s 61

110Application for approval to transfer

(1)The trustee of the Aboriginal land may apply to the Minister for an approval to transfer all or a part of the land.

(2)The application must be in the approved form.

sdiv 2 (ss 108–112) ins 2011 No. 26 s 61

111Minister’s approval to transfer

(1)The Minister may give an approval to transfer the land only if satisfied—

(a)the transferee agrees to the transfer; and

(b)the transferee is qualified to hold the land; and

(c)it is appropriate in the circumstances to transfer the land.

(2)If the Minister gives an approval to transfer the land, the chief executive must notify the approval by gazette notice.

(3)The gazette notice must include all of the following—

(a)the name of the transferor;

(b)a description of the land being transferred;

(c)the name of the transferee.

(4)In this section—

description, in relation to land, means the description of the land as shown in the freehold land register.

sdiv 2 (ss 108–112) ins 2011 No. 26 s 61

112Effect of gazette notice about transfer

On publication of the gazette notice the Aboriginal land proposed to be transferred may be transferred to the transferee.

sdiv 2 (ss 108–112) ins 2011 No. 26 s 61

sdiv 3 (s 113) ins 2011 No. 26 s 61

113Exemption

If a trustee of Aboriginal land transfers all or a part of the land under this division, no fee or charge is payable by the trustee or the entity to whom the land is transferred in relation to lodgement and registration of any instrument in the land registry to give effect to the transfer.

sdiv 3 (s 113) ins 2011 No. 26 s 61

div 5 (s 114) ins 2011 No. 26 s 61

114Dealing with Aboriginal land in Cape York Peninsula Region

(1) Subsection (2) applies to Aboriginal land in the Cape York Peninsula Region if the State and the trustee of the land agree the land or a part of the land is to become a national park (Cape York Peninsula Aboriginal land).

(2)The trustee must, before the land or part becomes a national park (Cape York Peninsula Aboriginal land), enter into an indigenous management agreement with the State about the management of the land or part.

(3)The trustee of land that is a national park (Cape York Peninsula Aboriginal land)—

(a)may surrender all or any part of the land to the State; and

(b)must not, other than under the Nature Conservation Act 1992 , sections 42AD and 42AE, transfer, grant or otherwise create, or consent to the creation of, any other interest in the land.

(4) Subsection (3) (b) applies despite any other provision of this or another Act.

div 5 (s 114) ins 2011 No. 26 s 61

div hdg ins 2011 No. 26 s 61

115Trustee to advise chief executive of change to description of land

If a trustee deals with Aboriginal land held by the trustee in a way that changes the description of the land as shown in the freehold land register, the trustee must as soon as practicable after the dealing happens give the chief executive notice of the change.

s 115 ins 2011 No. 26 s 61

amd 2013 No. 23 s 352 sch 1 pt 1

116Particular dealings in Aboriginal land void

(1)A grant, transfer or other creation of an interest in Aboriginal land in contravention of this part or part 2A or 10 is void.

(2) Subsection (1) does not apply to a registered interest.

s 116 ins 2011 No. 26 s 61

amd 2014 No. 45 s 11

117Provision about resumption of Aboriginal land etc.

(1)An interest in Aboriginal land can not be resumed, taken or otherwise compulsorily acquired, sold or dealt with other than under the Acquisition Act by a constructing authority.

(2)However, an interest in Aboriginal land may be taken under the Acquisition Act only for a relevant purpose.

(3)To remove any doubt, it is declared that, for taking an interest in Aboriginal land under the Acquisition Act, the Aboriginal land is land as defined in that Act.

(4) Subsection (1) has effect despite any other Act, whether enacted before or after the commencement of this section.

(5)In this section—

relevant purpose means any purpose for which land may be taken under the Acquisition Act by a constructing authority, other than a purpose under—

(a)the Geothermal Energy Act 2010 ; or

(b)the Greenhouse Gas Storage Act 2009 ; or

(c)the Petroleum and Gas (Production and Safety) Act 2004 ; or

(d)the State Development and Public Works Organisation Act 1971 .

s 117 ins 2011 No. 26 s 61

118Devolution of granted land

(1)This section applies if—

(a)a trustee holds granted land for the benefit of a single group of Aboriginal people; and

(b)the last surviving member of the group dies without leaving a descendant.

(2)The trustee holds the land for the benefit of Aboriginal people particularly concerned with the land unless the Minister decides, in writing, that the trustee holds the land for a stated group of Aboriginal people.

(3)The chief executive must give notice to the registrar of titles about how the land is vested in the trustee.

(4)On receiving the notice, the registrar of titles must record in the freehold land register how the land is vested in the trustee.

(5)Before making a decision under subsection (2), the Minister must consult with the Aboriginal people particularly concerned with the land and, unless the Minister is satisfied that exceptional circumstances exist that require the Minister to do otherwise, must have regard to—

(a)any Aboriginal tradition applicable to the land; and

(b)the views of the Aboriginal people to the extent they are not inconsistent with the Aboriginal tradition.

(6) Subsection (2) applies despite any other Act.

s 118 ins 2011 No. 26 s 61

amd 2013 No. 23 s 352 sch 1 pt 1

pt hdg ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

div 1 (s 119) ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

119Definitions for pt 10

In this part—

home ownership lease see sections 120 (2) and 121 (2).

lessee means—

(a)for a part 10 lease granted under a townsite lease—the sublessee under the townsite lease; or

(b)for another part 10 lease—the lessee under the lease.

lessor means—

(a)for a part 10 lease granted under a townsite lease—the lessee of the townsite lease; or

(b)for another part 10 lease—the trustee of the lease land.

part 10 lease means a lease granted under this part.

townsite lease see section 120 (3).

div 1 (s 119) ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

div hdg ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

Subdivision 1—Restrictions on grant of standard leases

sdiv hdg ins 2011 No. 26 s 61

om 2014 No. 45 s 12

Subdivision 2—Requirements for Minister’s consent

sdiv hdg ins 2011 No. 26 s 61

om 2014 No. 45 s 12

120Grant of lease by trustee of Aboriginal land

(1)The trustee of Aboriginal land may grant a lease over all or a part of the land for not more than 99 years.

(2)Without limiting subsection (1), the trustee of Aboriginal land may grant a lease (a home ownership lease) over all or a part of the land for 99 years to any of the following for residential use—

(a)an Aboriginal person;

(b)a person who is not an Aboriginal person if—

(i)the person is the spouse or former spouse of—

(A)a person mentioned in paragraph (a); or

(B)a person mentioned in paragraph (a) who is deceased; or

(ii)the lease supports another part 10 lease granted to the person.

(3)The trustee of Aboriginal land may grant a perpetual lease (a townsite lease) over all or a part of the land if—

(a)the land or part is township land; and

(b)the lease is granted to a local government.

s 120 ins 2011 No. 26 s 61

amd 2013 No. 2 s 106 (amdt could not be given effect)

sub 2014 No. 45 s 12

121Grant of lease by lessee of townsite lease

(1)The lessee of a townsite lease may grant a lease for not more than 99 years over all or a part of the lease land.

(2)Without limiting subsection (1), the lessee of a townsite lease may grant a lease (also a home ownership lease) over all or a part of the lease land for 99 years to any of the following for residential use—

(a)an Aboriginal person;

(b)a person who is not an Aboriginal person if—

(i)the person is the spouse or former spouse of—

(A)a person mentioned in paragraph (a); or

(B)a person mentioned in paragraph (a) who is deceased; or

(ii)the lease supports another part 10 lease granted to the person.

s 121 ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

div hdg ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

Subdivision 1—Restriction on grant of townsite leases

sdiv hdg ins 2011 No. 26 s 61

om 2014 No. 45 s 12

Subdivision 2—Requirements for Minister’s consent

sdiv hdg ins 2011 No. 26 s 61

om 2014 No. 45 s 12

Subdivision 3—Provisions about dealing with townsite leases

sdiv hdg ins 2011 No. 26 s 61

om 2014 No. 45 s 12

Subdivision 4—Effect of townsite lease on existing interests

sdiv hdg ins 2011 No. 26 s 61

om 2014 No. 45 s 12

122General conditions of particular leases

(1)A part 10 lease, other than a townsite lease, may include any of the following conditions—

(a)a stated standard terms document under the Land Title Act forms part of the lease;

(b)the lease must not be transferred without the lessor’s prior written consent;

(c)an interest under the lease, other than a mortgage of the lease, must not be created without the lessor’s prior written consent.

(2)If a part 10 lease includes a condition mentioned in subsection (1) (b) or (c), the lessor must not unreasonably withhold consent to the transfer or the creation of an interest under the lease.

(3)A part 10 lease may be mortgaged without the consent of the lessor.

(4)Subject to subsection (3), this section does not limit the conditions that may be imposed on a part 10 lease.

s 122 ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

123Option to renew particular lease

(1)A part 10 lease granted under section 120 (1) or 121 (1) may include an option to renew the lease.

(2)The term of the renewed lease must not be more than the initial term of the lease.

s 123 ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

124Transfer of lease

A part 10 lease must not be transferred to a person who, under this Act, would not be entitled to a grant of the lease.

s 124 ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

125Lease etc. to be registered

(1)The lessee of a part 10 lease must register the lease and an amendment, surrender or transfer of the lease.

(2)Despite the Land Title Act, section 65 (2), an instrument of lease for Aboriginal land must include a plan of survey identifying the lease land.

(3) Subsection (2) does not apply to a lease entered into only in relation to an area completely within a building.

s 125 ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

div hdg ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

sdiv hdg ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

126General conditions and requirements

(1)A home ownership lease is subject to all of the following conditions—

(a)the annual rental under the lease is the amount, of not more than $1, decided by the lessor;

(b)the consideration payable for the lease must include, as a lump sum payment, an amount equal to the value of the lease land as decided by the lessor using at least 1 of the following—

(i)a valuation methodology decided by the chief executive;

(ii)the benchmark purchase price, as prescribed by regulation, for land in the part of the State in which the lease land is situated;

(c)the lease land must be used primarily for residential use;

(d)if a dwelling for residential use is not situated on the lease land when the lease is granted—the lessee must ensure a dwelling for residential use is built on the land within 8 years after the lease is granted.

(2)A lessor may grant a home ownership lease only if the amount equal to the value of the lease land decided under subsection (1) (b) has been paid to the lessor.

(3)The chief executive—

(a)must, if asked, give a person a copy of the valuation methodology mentioned in subsection (1) (b) (i); and

(b)may make the valuation methodology available for inspection on the department’s website.

(4)However, the value of the lease land under subsection (1) (b) must be taken to be nil if—

(a)the lessee is the recipient of a hardship certificate under the new Land Holding Act; and

(b)the certificate has not previously been used under this section, whether or not the land identified in the certificate is the same as the lease land.

s 126 ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

127Additional requirement if dwelling situated on land

(1)This section applies if—

(a)a lessor proposes to grant a home ownership lease; and

(b)a dwelling is situated on the lease land.

(2)The lessor must give the housing chief executive notice of the lessor’s intention to grant the lease.

(3)Within 28 days after receiving the notice, the housing chief executive must give the lessor a notice stating whether or not the dwelling is a social housing dwelling.

(4)The lessor must not grant the lease before receiving the notice under subsection (3).

(5)This section and section 128 do not limit section 126.

s 127 ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

128Additional conditions and requirements for social housing dwelling

(1)This section applies if the notice under section 127 (3) states the dwelling is a social housing dwelling.

(2)Before the lease is granted, the lessor must decide the value of the dwelling by using a valuation methodology agreed between the lessor and the housing chief executive.

(3)The consideration payable for the lease must include, as a lump sum payment, an amount equal to the value of the dwelling decided under subsection (2).

(4)The lessor may grant the lease only if—

(a)the housing chief executive has given written approval that the grant may include the sale of the dwelling; and

(b)the amount equal to the value of the dwelling decided under subsection (2) has been paid to the lessor.

(5)In considering whether to give the approval mentioned in subsection (4) (a), the housing chief executive must have regard to whether it would be more appropriate in the circumstances for the dwelling to continue to be social housing.

(6)If the lessor grants the lease, and within 28 days after the lease is registered, the lessor must give the housing chief executive—

(a)a notice stating—

(i)the day the lease was registered; and

(ii)the names of the parties to the lease; and

(b)evidence showing the consideration for the lease under subsection (3) and section 126 (1) (b) has been paid to the lessor.

Note—

An amount paid under subsection (3) for the value of a dwelling must be used by the lessor as required under section 288.

s 128 ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

sdiv hdg ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

129Grounds for forfeiture

A home ownership lease may be forfeited only if—

(a)the lessee breaches either of the following conditions and fails to remedy the breach within 6 months after receiving notice of the breach from the lessor—

(i)a condition of the lease mentioned in section 126 (1) (d);

(ii)another condition if the lessor reasonably considers a breach of the condition is of a serious nature and warrants forfeiture of the lease; or

(b)the lessee acquired the lease by fraud.

s 129 ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

130Referral to Land Court for forfeiture

(1)Before a home ownership lease is forfeited, the lessor must refer the proposed forfeiture to the Land Court to decide whether the lease may be forfeited.

(2)At least 28 days before the lessor refers the proposed forfeiture to the Land Court, the lessor must give notice of the proposed referral to the lessee and any mortgagee of the lease.

(3)The notice must state the grounds on which the lessor reasonably considers the lease may be forfeited.

(4)If the lessor refers the proposed forfeiture to the Land Court, the lessor must file a copy of the notice in the court.

(5)In deciding whether the lease may be forfeited, the Land Court must have regard to—

(a)the grounds stated in the notice under subsection (3); and

(b)if the proposed forfeiture is because of a breach of a condition of the lease—whether the court considers the breach is of a serious nature and warrants forfeiture of the lease.

(6)A decision by the Land Court that the lease may be forfeited may be subject to conditions.

s 130 ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

131Lessor’s options if Land Court decides lease may be forfeited

(1)If the Land Court decides a home ownership lease may be forfeited, the lessor may—

(a)if the proposed forfeiture is subject to conditions decided by the court—forfeit the lease under this subdivision if the conditions of forfeiture are satisfied; or

(b)otherwise—forfeit the lease under this subdivision.

(2)If the proposed forfeiture is because of a breach of a lease condition, the lessor may decide not to forfeit the lease and instead allow the lease to continue subject to the lease being amended to include conditions agreed between the lessor and the lessee.

s 131 ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

132Notice and effect of forfeiture

(1)If the lessor forfeits a home ownership lease, the lessor must, within 60 days after the Land Court makes its decision about forfeiture of the lease, give notice that the lease is forfeited to—

(a)the lessee and any mortgagee of the lease; and

(b)the registrar of titles.

(2)On receiving the notice, the registrar must record the forfeiture of the lease in the appropriate register.

(3)The forfeiture of the lease takes effect on the day the registrar acts under subsection (2).

(4)On forfeiture of the lease—

(a)the lease ends; and

(b)the lessee is divested of any interest in the lease; and

(c)any person occupying the lease land must immediately vacate the land.

s 132 ins 2011 No. 26 s 61

amd 2013 No. 2 s 107

sub 2014 No. 45 s 12

133Extension of term of lease if proposed forfeiture

(1)This section applies to a home ownership lease if—

(a)a proposed forfeiture of the lease has been referred to the Land Court; and

(b)after the referral but before the Land Court decides on the matter, the term of the lease would, but for subsection (2), end.

(2)The term of the lease is taken to continue until—

(a)if the lease is forfeited—the forfeiture of the lease takes effect as mentioned in section 132 (3); or

(b)otherwise—the end of 60 days after the Land Court makes its decision.

(3) Subsection (2) applies to the lease despite the provisions of the lease and any other provision of this Act.

s 133 ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

sdiv hdg ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

134Application to renew lease

(1)The lessee under a home ownership lease may apply in writing to the lessor to renew the lease.

(2)The application must—

(a)state the name of the lessee; and

(b)include information to identify the lease.

s 134 ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

135Notice of expiry of lease

(1)This section applies if the lessee under a home ownership lease has not, under section 134, applied for renewal of the lease at least 2 years before the term of the lease ends.

(2)At least 1 year before the term of the lease ends, the lessor must give the lessee notice stating—

(a)the day the term of the lease ends; and

(b)that the lessee may apply under this subdivision for renewal of the lease; and

(c)how the lessee may apply.

s 135 prev s 135 om 2011 No. 26 s 83

pres s 135 ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

136Lessor to consider and decide application

Within 6 months after an application is made under section 134, the lessor must consider the application and decide to renew or not to renew the home ownership lease.

s 136 ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

137Decision to renew lease

(1)If the lessor decides to renew the home ownership lease, the lessor must give the lessee—

(a)notice of the decision; and

(b)a copy of the renewed lease.

(2)The renewed lease—

(a)has effect immediately after the lease it replaces (the replaced lease) ends; and

(b)is subject to all the conditions to which the replaced lease was subject immediately before it ended.

(3)No amount is payable under section 126 (1) (b) for the renewed lease.

s 137 ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

138Lessor may decide not to renew lease

The lessor may decide not to renew the home ownership lease only if the lessor is reasonably satisfied—

(a)the lease land is not being used primarily for residential use; or

(b)the lessee acquired the lease by fraud.

s 138 ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

139Notice about decision not to renew lease

If the lessor decides not to renew the home ownership lease, the lessor must give the lessee an information notice for the decision.

s 139 ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

140Extension of term of lease if application for renewal

(1)This section applies to a home ownership lease if—

(a)the lessee has applied to renew the lease under section 134; and

(b)before the lessor decides the application, the term of the lease would, but for subsection (2), end.

(2)The term of the lease is taken to continue until notice of the lessor’s decision is given to the lessee under this subdivision.

(3) Subsection (2) applies to the lease despite the provisions of the lease and any other provision of this Act.

s 140 ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

sdiv hdg ins 2014 No. 45 s 12

141Right to remove improvements if lease forfeited or not renewed

(1)If the lessor forfeits or decides not to renew a home ownership lease, the lessor must allow the lessee to remove the lessee’s improvements on the lease land within a reasonable period of at least 28 days decided by the lessor.

(2)If the improvements are not removed within the period, they become the property of the lessor.

s 141 ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

142Payment by lessor if lease forfeited or not renewed

(1)If the lessor forfeits or decides not to renew a home ownership lease, the lessor must pay to the person who was the lessee the amount decided by the lessor under subsection (2) (the required amount).

(2)The required amount is the amount equal to the combined value of the following (the maximum amount) less any amounts deducted from the maximum amount under section 144—

(a)the value of the lease land on the day the lease is forfeited or ends;

(b)the value of the lessee’s improvements on the land that become the property of the lessor.

(3)The value of the lease land must be the amount decided by the lessor using the valuation methodology mentioned in section 126 (1) (b) (i).

(4)The value of any improvements on the lease land must be decided by the lessor based on the market value of the improvements in a sale of a lease of the same term and tenure as the forfeited or non-renewed lease.

(5)The lessor must decide the required amount as soon as practicable after giving the person notice that the lease is forfeited or not renewed.

(6)On deciding the required amount, the lessor must give the person an information notice for the decision.

(7)This section is subject to section 143.

s 142 ins 2011 No. 26 s 61

amd 2013 No. 2 s 108

sub 2014 No. 45 s 12

143Unclaimed amount

If the lessor can not find the person entitled to receive the required amount, or the person does not collect the amount from the lessor within 9 years after the day the lease is forfeited or not renewed, the required amount is forfeited to the lessor.

s 143 ins 2011 No. 26 s 61

amd 2013 No. 23 s 352 sch 1 pt 1

sub 2014 No. 45 s 12

144Amount owing to lessor or mortgagee

If the lessor forfeits or decides not to renew a home ownership lease, the lessor may deduct the following amounts from the maximum amount—

(a)an amount in payment of all costs properly incurred by the lessor in forfeiting or not renewing the lease;

(b)an amount in payment of expenses incurred by the lessor to rectify damage caused to the lease land by the person who was the lessee;

(c)any amount owing to the lessor by the person under the lease;

(d)any amount owing to a mortgagee of the lease by the person under a mortgage of the lease.

s 144 ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

145Payment of amount to mortgagee in discharge of mortgage

(1)This section applies if—

(a)the lessor forfeits or decides not to renew a home ownership lease; and

(b)under a mortgage of the lease, an amount is owing to a mortgagee of the lease by the person who was the lessee.

(2)The lessor must pay to the mortgagee—

(a)if the amount that may be deducted from the maximum amount under section 144 (d) is less than the difference between the maximum amount and the amounts deducted under section 144 (a), (b) and (c)—the amount that may be deducted from the maximum amount under section 144 (d); or

(b)otherwise—the amount equal to the difference between the maximum amount and the amounts deducted under section 144 (a), (b) and (c).

(3)The lessor must pay the amount payable under subsection (2) to the mortgagee—

(a)if no appeal is made to the Land Court about the required amount payable to the person who was the lessee—within 28 days after the time for making an appeal ends; or

(b)if an appeal is made to the Land Court about the required amount payable to the person who was the lessee—within 28 days after the appeal is finally decided.

(4)If the lessor pays an amount to the mortgagee in relation to a mortgage of the lease, the mortgagee must use the amount in discharge of the mortgage.

s 145 ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

sdiv hdg ins 2014 No. 45 s 12

146Exemption from fees and charges

(1)This section applies to an instrument of lease for a home ownership lease.

(2)No fee or charge is payable for—

(a)the lodgement and registration of the instrument in the land registry; or

(b)the provision by the registrar of titles of other services for the lodgement and registration of the instrument.

s 146 ins 2011 No. 26 s 61

amd 2013 No. 2 s 109 (amdt could not be given effect)

sub 2014 No. 45 s 12

147Beneficiary to home ownership lease

(1)A person who is beneficially entitled under a will to a home ownership lease may ask the lessor—

(a)to give the person a notice stating whether or not the person is entitled to a grant of the lease under this Act; and

(b)if, under a condition of the lease, the lease can not be transferred without the lessor’s written consent—for the lessor’s written consent to the transfer of the lease.

Note—

Under section 122, a home ownership lease may include a condition that it must not be transferred without the lessor’s prior written consent.

(2)The lessor must comply with a request under subsection (1) as soon as practicable after receiving the request.

s 147 ins 2011 No. 26 s 61

def lessor amd 2013 No. 23 s 352 sch 1 pt 1; 2013 No. 2 s 110 (1) (amdt could not be given effect)

def residential lease amd 2013 No. 23 s 352 sch 1 pt 1; 2013 No. 2 s 110 (2)–(3) (amdt could not be given effect)

sub 2014 No. 45 s 12

div hdg ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

sdiv hdg ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

148Minister’s consent for grant of townsite lease

(1)A townsite lease may be granted only with the Minister’s prior written consent.

(2)The Minister may consent to the grant of a townsite lease only if—

(a)the lease is over an entire lot as shown in the appropriate register; and

(b)the Minister is reasonably satisfied that any existing interests in the proposed lease land are not inconsistent with the lease.

s 148 ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

sdiv hdg ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

149General requirements for Minister’s consent

(1)A person seeking the Minister’s prior written consent to the grant of a townsite lease must give the Minister the information or documents reasonably required by the Minister to show—

(a)the purpose of the lease; and

(b)the grant of the lease is for the benefit of persons for whom the trustee holds the lease land; and

(c)the grant of the lease—

(i)will facilitate the continued operation of a township on the lease land; and

(ii)will not prevent residents of the township land from continuing to live on and access the land, or from obtaining tenure over the land under this Act.

(2)In considering whether to give the consent, the Minister—

(a)must have regard to the information or documents given to the Minister under subsection (1); and

(b)may have regard to other information the Minister reasonably considers relevant to the proposed lease.

(3)Also, before giving the consent, the Minister must be reasonably satisfied—

(a)the Aboriginal people particularly concerned with the lease land are generally in agreement with the grant of the lease; and

(b)the grant of the lease—

(i)will facilitate the continued operation of a township on the lease land; and

(ii)will not prevent residents of the township land from continuing to live on and access the land, or from obtaining tenure over the land under this Act.

s 149 ins 2011 No. 26 s 61

amd 2013 No. 23 s 352 sch 1 pt 1

sub 2014 No. 45 s 12

sdiv hdg ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

150Transfer or amendment of townsite lease

(1)A townsite lease must not be transferred or amended without—

(a)the agreement of both the trustee and the lessee of the lease land; and

(b)the Minister’s prior written consent.

(2)A person seeking the Minister’s prior written consent to the transfer or amendment of a townsite lease must give the Minister the information or documents relevant to the proposed transfer or amendment reasonably required by the Minister.

(3)In considering whether to consent to the transfer of a townsite lease, the Minister must consider whether the proposed transferee is capable of complying with the conditions of the lease.

(4)The Minister may consent to the amendment of a townsite lease only if reasonably satisfied—

(a)the amendment does not significantly change the conditions of the townsite lease; and

(b)the amendment will not diminish the purpose of the lease.

(5)A townsite lease must not be transferred to a person who, under this Act, would not be entitled to a grant of the lease.

s 150 ins 2011 No. 26 s 61

amd 2013 No. 23 s 352 sch 1 pt 1

sub 2014 No. 45 s 12

151Surrender of townsite lease

A townsite lease must not be surrendered without the Minister’s prior written consent.

s 151 ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

152No forfeiture of townsite lease

A townsite lease can not be forfeited.

s 152 ins 2011 No. 26 s 61

amd 2013 No. 23 s 352 sch 1 pt 1

sub 2014 No. 45 s 12

sdiv hdg ins 2014 No. 45 s 12

153Lessee of townsite lease taken to be lessor of existing leases

(1) Subsection (2) applies if a townsite lease is granted over Aboriginal land that is, immediately before the grant of the townsite lease, the subject of a following lease (each a continued lease)—

(a)a 1985 Act granted lease or a new Act granted lease under the new Land Holding Act;

(b)a lease under the Land Act;

(c)a trustee (Aboriginal) lease.

(2)On the grant of the townsite lease—

(a)the continued lease continues in force and is taken to be—

(i)if the continued lease is primarily for residential use—a home ownership lease for the same term for which the continued lease was granted; or

(ii)otherwise—a lease granted under section 121 (1); and

(b)the lessee of the townsite lease is substituted for the lessor as a party to the continued lease.

Note—

Under section 45 (2), the trustee of the Aboriginal land is the lessor of the continued lease.

(4) Section 45 (3) applies to a continued lease as if the reference in that subsection to the trustee of the land were a reference to the lessee of the townsite lease.

s 153 ins 2011 No. 26 s 61

sub 2014 No. 45 s 12

amd 2014 No. 45 s 58 sch 1 pt 2

pt hdg ins 2007 No. 48 s 38

amd 2011 No. 11 s 25

div hdg ins 2007 No. 48 s 38

169Entering into indigenous management agreement

(1)This section applies if—

(a)it is proposed that an entity holds land in the Cape York Peninsula Region or the North Stradbroke Island Region as Aboriginal land; and

(b)the State and the entity agree that the land, or part of the land, is to become—

(i)for land in the Cape York Peninsula Region—a national park (Cape York Peninsula Aboriginal land); or

(ii)for land in the North Stradbroke Island Region—an indigenous joint management area.

(2)Before the land is granted, the entity must enter into an indigenous management agreement with the State about the proposed management of the land, or the part of the land, that is to become a national park (Cape York Peninsula Aboriginal land) or an indigenous joint management area.

s 169 (prev s 83FA (orig s 83E)) ins 2007 No. 48 s 38

amd 2008 No. 29 s 39

renum and reloc 2008 No. 29 s 39 (3)

renum 2008 No. 29 s 3 sch

amd 2011 No. 11 s 26; 2011 No. 26 s 62

170Requirements for indigenous management agreement

(1)An indigenous management agreement about the management of land must—

(a)include a lot on plan description of the land; and

(b)state the land will be managed in perpetuity as—

(i)for land in the Cape York Peninsula Region—a national park (Cape York Peninsula Aboriginal land); or

(ii)for land in the North Stradbroke Island Region—an indigenous joint management area; and

(c)state how the land is proposed to be managed; and

(d)include details of any interim arrangements for its management before the approval of a management statement or management plan for the land; and

(e)state the responsibilities of the environment Minister, and the chief executive under the Nature Conservation Act 1992 , in relation to the management of the land; and

(f)state the responsibilities of the trustee in relation to its management; and

(g)include details of the process for developing a management statement or management plan for the land; and

(h)include details of areas of the land to which general public access may be restricted; and

(i)include information about the management of any infrastructure on the land; and

(j)state how existing interests in the land will be managed and how future interests in the land will be created and managed.

(2)An indigenous management agreement about the management of land that is a national park that is to become a national park (Cape York Peninsula Aboriginal land) or an indigenous joint management area must not result in a decrease, in the aggregate, in the public rights of access that existed in relation to the national park immediately before it becomes a national park (Cape York Peninsula Aboriginal land) or an indigenous joint management area.

(3)An indigenous management agreement about the management of land may include other matters relevant to the management of the land that the trustee, or proposed trustee, for the land and the environment Minister consider appropriate.

(4)An indigenous management agreement about the management of land can not be entered into without the consent of the environment Minister.

(5)In this section—

management plan means a management plan under the Nature Conservation Act 1992 .

management statement means a management statement under the Nature Conservation Act 1992 .

s 170 ins 2007 No. 48 s 38

amd 2008 No. 29 s 40; 2011 No. 11 s 27; 2011 No. 26 s 63; 2013 No. 55 s 4

171Amending indigenous management agreement

An indigenous management agreement about the management of land may be amended with the agreement of the trustee, or proposed trustee, for the land and the environment Minister.

s 171 ins 2007 No. 48 s 38

amd 2008 No. 29 s 41

172Recording of indigenous management agreement

(1)The chief executive must give the registrar of titles notice of each indigenous management agreement entered into under this Act.

(2)The chief executive must give the notice—

(a)if the land the subject of the agreement becomes Aboriginal land after the agreement is entered into—as soon as practicable after the land becomes Aboriginal land; or

(b)if the land the subject of the agreement is Aboriginal land when the agreement is entered into—as soon as practicable after the agreement is entered into.

(3)The notice must include particulars of the land.

(4)The registrar must keep records that show the land is the subject of an indigenous management agreement.

(5)The registrar must keep the records in a way that a search of the register kept by the registrar under any Act relating to title to the land will show the existence of the agreement.

(6)While the indigenous management agreement has effect for the land, and is recorded by the registrar under this section, the agreement is binding on—

(a)each entity that is from time to time the trustee for the land, whether or not the entity entered into the agreement or agreed to any amendment of the agreement; and

(b)each person who has an interest in the land.

s 172 ins 2007 No. 48 s 38

amd 2008 No. 29 s 42; 2011 No. 26 s 64; 2013 No. 23 s 352 sch 1 pt 1

div hdg ins 2007 No. 48 s 38

amd 2016 No. 22 s 33

173Requirements about grant of prescribed protected areas in Cape York Peninsula Region

(1)This section applies to the following land if the land is, or includes part of, a prescribed protected area in the Cape York Peninsula Region (the park land)—

(a)transferable land;

(b)land for which the Land Tribunal has, under section 71, made a recommendation to the Minister before the commencement of this section.

(2)Before the park land is granted under this Act, the trustee or proposed trustee for the land must enter into an indigenous management agreement with the State about the management of the park land.

(3)A grant of the park land under this Act is subject to the condition that the park land must become a national park (Cape York Peninsula Aboriginal land).

(4)In this section—

prescribed protected area means—

(a)a national park; or

(b)a regional park under the Nature Conservation Act 1992 prescribed by regulation.

s 173 ins 2007 No. 48 s 38

amd 2008 No. 29 s 43; 2011 No. 26 s 189 sch; 2016 No. 22 s 34

174Prescribed protected areas are transferable land

(1)A prescribed protected area in the Cape York Peninsula Region is transferable land for the purposes of this Act.

(2)In this section—

prescribed protected area see section 173(4).

s 174 ins 2007 No. 48 s 38

sub 2016 No. 22 s 35

div hdg ins 2011 No. 11 s 28

175Requirement about grant of prescribed protected areas in North Stradbroke Island Region

(1)This section applies to transferable land if the land is, or includes part of, a prescribed protected area in the North Stradbroke Island Region.

(2)Before the land is granted under this Act, the trustee, or proposed trustee, for the land must enter into an indigenous management agreement with the State about the management of the land.

(3)A grant of the land under this Act is subject to the condition that the land must become an indigenous joint management area.

(4)In this section—

prescribed protected area means a national park or a regional park under the Nature Conservation Act 1992 .

s 175 ins 2011 No. 11 s 28

amd 2013 No. 55 s 175 sch 1 pt 2

pt hdg ins 2007 No. 48 s 38

amd 2013 No. 23 s 352 sch 1 pt 1; 2013 No. 2 s 111 (amdt could not be given effect)

176Particular claimable land taken to be transferable land

(1)This section applies to claimable land that is in the Cape York Peninsula Region, other than—

(a)claimable land that is transferred land; or

(b)claimable land for which the Land Tribunal has, under section 71, made a recommendation to the Minister before the commencement of this section.

(2)On the commencement of this section—

(a)the land is transferable land for the purposes of this Act; and

(b)the land stops being claimable land; and

(c)any proceeding before the Land Tribunal in relation to a claim for the land ends; and

(d)part 5, and part 6, division 1, stop applying to the claim for the land.

(3) Subsection (2) applies despite any other provision of this Act.

s 176 ins 2007 No. 48 s 38

177Claimable land recommended for grant taken to be transferable land

(1)This section applies to the following land for which the Land Tribunal has, under section 71, made a recommendation to the Minister—

(a)land shown as national park 4 on plan NPW42;

(b)land shown as national park 8 on plan NPW118;

(c)land shown as national park 10 on plan NPW452, including the area shown and described on the plan as closed road;

(d)land shown as national park 16 on plan NPW359;

(e)lot 44 on plan NPW472;

(f)land declared to be national park by proclamation published in the gazette on 2 December 1939 at pages 1845 and 1846 and described as the Flinders Group of islands, comprising Flinders Island—exclusive of Special Lease No. 8544—and Stanley, Blackwood, Maclear, and Denham Islands;

(g)lots 1 and 2 on CP887589, lots 1 and 2 on CP887590, lot 3 on CP887717, lot 4 on CP887719, lot 5 on CP887718 and lot 285 on plan C157365;

(h)lot 215 on plan NPW46.

(2)On the commencement of this section—

(a)the land is transferable land for the purposes of this Act; and

(b)the land stops being claimable land; and

(c)any proceeding before the Land Tribunal in relation to a claim for the land ends; and

(d)part 5, and part 6, division 1, stop applying to the claim for the land.

(3) Subsection (2) applies despite any other provision of this Act.

s 177 ins 2011 No. 8 s 5

amd 2013 No. 23 s 9

pt hdg ins 2008 No. 29 s 44

amd 2011 No. 26 s 189 sch

178When agreement of Aboriginal people is given

If this Act provides that Aboriginal people be generally in agreement with a grant, consent or agreement about Aboriginal land, the agreement of the Aboriginal people is taken to have been given when—

(a)if there is a particular process of decision-making that, under the Aboriginal tradition of the Aboriginal people, must be complied with for decisions of that kind—the decision was made under the process; or

(b)otherwise—the decision was made under the process of decision-making agreed to and adopted by the Aboriginal people for the decision or for decisions of that kind.

s 178 ins 2008 No. 29 s 44

179Decision-making by trustee

(1)This section applies if this Act provides that the trustee of Aboriginal land is required to make a decision about the land, including, for example, a decision about any of the following—

(a)the way in which the trustee will consult about the making of a freehold instrument for the land;

(b)whether to grant an interest in the land;

(c)whether to consent to the creation of a mining interest in the land;

(d)whether to enter into an agreement about the land.

(2)The trustee must—

(a)have regard to—

(i)if the Aboriginal people for whom the trustee holds the land have agreed on a decision-making process for decisions of that kind—the process; or

(ii)if subparagraph (i) does not apply—any Aboriginal tradition, for decisions of that kind, of the Aboriginal people for whom the trustee holds the land; or

(b)if there is no decision-making process mentioned in paragraph (a)(i) or relevant Aboriginal tradition—make the decision under a process of decision-making agreed to and adopted by the trustee for the decision or for decisions of that kind.

s 179 ins 2008 No. 29 s 44

amd 2011 No. 26 s 65; 2014 No. 45 s 13

pt hdg ins 2008 No. 29 s 44

sub 2011 No. 26 s 66

div hdg ins 2011 No. 26 s 66

180Definitions for pt 14

In this part—

lease means a part 10 lease, other than a townsite lease.

def lease sub 2014 No. 45 s 14

lessor means—

(a)for a lease granted under a townsite lease—the lessee of the townsite lease; or

(b)for another lease—the trustee of the lease land.

def lessor sub 2014 No. 45 s 14

s 180 ins 2011 No. 26 s 66

181Application of pt 14

If, in relation to the mortgaging of a lease over Aboriginal land, there is an inconsistency between a provision of this part and the Land Title Act, part 6, division 3, or the Property Law Act 1974 , the provision of this part prevails to the extent of the inconsistency.

s 181 ins 2008 No. 29 s 44

sub 2011 No. 26 s 66

div hdg ins 2011 No. 26 s 66

182Provision about entering into possession of, and selling, lease

(1)This section applies if a mortgagee enters into possession of a lease granted over Aboriginal land.

(2)The mortgagee must give the lessor for the lease notice of the fact within 28 days after entering into possession.

(3)The mortgagee must arrange to sell the lease within—

(a)4 years after entering into possession of the lease; or

(b)the longer period agreed in writing between the mortgagee and lessor.

(4)For subsection (3) (b)—

(a)the period mentioned in subsection (3) (a) may be extended or further extended for not more than 2 years at a time; and

(b)an extension or further extension of the period must be agreed in writing before the period or further extended period would otherwise have ended.

(5)In considering whether to agree to an extension or further extension, the lessor must have regard to the measures the mortgagee has already taken to sell the lease.

(6)If the mortgagee does not sell the lease within the period mentioned in subsection (3), the lessor may sell the lease.

(7)The mortgagee or lessor may sell the lease only to a person who, under this Act, would be entitled to a grant of the lease.

(8)The lessor must not sell the lease for less than—

(a)the amount owing to the mortgagee by the lessee under the mortgage on the day the lease is sold; or

(b)if the lessor and the mortgagee agree the lease may be sold for an amount less than the amount mentioned in paragraph (a)—the agreed amount.

(9)In this section—

lessee means—

(a)for a lease granted under a townsite lease—the lessee under the lease; or

(b)for another lease—the lessee under the lease.

s 182 ins 2008 No. 29 s 44

sub 2011 No. 26 s 66

amd 2011 No. 26s 189 sch; 2013 No. 23 s 352 sch 1 pt 1; 2014 No. 45 s 15

183How lessor deals with proceeds of sale

(1)This section applies if, under section 182, a lessor sells a mortgaged lease.

(2)The lessor must apply the proceeds of the sale, under the Property Law Act 1974 , as if the lease were sold by the mortgagee and the amount of the sale were received by the mortgagee.

(3)However, in applying the proceeds of the sale, the lessor must firstly apply the proceeds to the payment of all costs, charges and expenses properly incurred by the lessor for the sale or any attempted sale.

s 183 ins 2008 No. 29 s 44

sub 2011 No. 26 s 66

pt hdg ins 2008 No. 29 s 44

div hdg ins 2008 No. 29 s 44

184Definitions for pt 15

In this part—

Aboriginal trust land means—

(a)land subject to a deed of grant in trust granted for the benefit of Aboriginal inhabitants or for the purpose of an Aboriginal reserve under the repealed Land Act 1962 ; or

(b)land reserved and set apart under the repealed Land Act 1962 for an Aboriginal reserve or for the benefit of Aboriginal inhabitants; or

(c)land subject to a deed of grant in trust granted for the benefit of Aboriginal inhabitants under the Land Act; or

(d)land dedicated under the Land Act as a reserve for Aboriginal purposes or the provision of services beneficial to Aboriginal people particularly concerned with the land.

def Aboriginal trust land amd 2011 No. 26 s 67 (1)

trustee ...

def trustee om 2014 No. 45 s 58 sch 1 pt 1

trustee (Aboriginal) lease means a lease of Aboriginal trust land granted under—

(a)part 10 as applied under section 186 (2); or

(b)the Land Act, section 57 before the commencement of this part.

def trustee (Aboriginal) lease amd 2011 No. 26 s 67 (2)

s 184 ins 2008 No. 29 s 44

185Relationship with Land Act

(1)The following provisions of the Land Act, chapter 3, part 1, division 7 do not apply to Aboriginal trust land—

(a) sections 57 to 59;

(b) section 61, to the extent it relates to a lease or sublease of the land;

(c) section 63, to the extent it relates to a lease of the land;

(d) section 64;

(e) sections 65 and 66, to the extent the provisions relate to a lease of the land.

(2)For the purposes of the Land Act, other than the provisions mentioned in subsection (1), a trustee (Aboriginal) lease is taken to be a trustee lease under that Act.

s 185 ins 2008 No. 29 s 44

div hdg ins 2008 No. 29 s 44

186Trustee (Aboriginal) leases

(1)A trustee of Aboriginal trust land may lease all or a part of the land under part 10.

(2)For subsection (1), part 10 applies in relation to the leasing of Aboriginal trust land—

(a)as if a reference in the part to Aboriginal land were a reference to Aboriginal trust land; and

(b)as if the reference in section 122 (1) (a) to a stated standard terms document under the Land Title Act were a reference to a stated mandatory standard terms document under the Land Act.

(3)The grant of a lease over Aboriginal trust land in contravention of part 10 is void, unless the lease is registered.

(4) Subsection (3) applies despite any other Act.

s 186 ins 2008 No. 29 s 44

amd 2011 No. 26 s 68; 2014 No. 45 s 16

187Amending trustee (Aboriginal) lease

(1)A document of amendment of a registered trustee (Aboriginal) lease must not—

(a)increase or decrease the area leased; or

(b)add or remove a party to the lease; or

(c)be lodged after the lease’s term has ended.

(2)In this section—

term, of a trustee (Aboriginal) lease, includes a period of possession under the lease because of—

(a)the renewal of the lease; or

(b)a registered document of amendment extending the term of the lease.

s 187 ins 2008 No. 29 s 44

amd 2011 No. 26 s 69

188Mortgage of trustee (Aboriginal) lease

(1)Subject to subsection (2), a lessee of Aboriginal trust land may, under the Land Act, chapter 6, part 4, division 4, mortgage a trustee (Aboriginal) lease.

(2)For mortgaging a trustee (Aboriginal) lease—

(a)the Land Act, chapter 6, part 4, division 4, applies—

(i)as if the reference in section 345 (2) to the Minister were a reference to the trustee; and

(ii)as if section 346 (1) provided that the mortgagee may offer the lease for sale by public auction or may sell the lease by private contract; and

(iii)as if the reference in section 346 (3) to a person qualified under the Land Act to hold the lease were a reference to a person entitled under this Act to a grant of the lease; and

(iv)as if section 347 were omitted; and

(b) section 182 applies as if the reference in section 182 (1) to Aboriginal land were a reference to Aboriginal trust land.

s 188 ins 2008 No. 29 s 44

189Surrender of trustee (Aboriginal) lease

All or part of a trustee (Aboriginal) lease or a sublease of a trustee (Aboriginal) lease may be surrendered only if each registered mortgagee and registered sublessee of the interest being surrendered has given written agreement to the surrender.

s 189 ins 2008 No. 29 s 44

pt hdg ins 2011 No. 26 s 70

div hdg ins 2011 No. 26 s 70

192Application of div 1

This division applies to prescribed DOGIT land.

s 192 ins 2011 No. 26 s 70

193Prescribed DOGIT land may be granted under this Act

(1)Despite any other provision of this Act, prescribed DOGIT land may be—

(a)granted under part 4; and

(b)held by a trustee for the benefit of Aboriginal people and Torres Strait Islanders particularly concerned with the land, and their ancestors and descendants.

(2)If the land is held as mentioned in subsection (1) (b), the land may, for any dealing with the land under this Act or another Act, be called Aboriginal and Torres Strait Islander land.

s 193 ins 2011 No. 26 s 70

194Minister to consult before grant of land

Before the land is granted under part 4, the Minister must—

(a)consult with Aboriginal people and Torres Strait Islanders particularly concerned with the land—

(i)to identify how the continued use of, and access to, the land by the Aboriginal people and Torres Strait Islanders can be achieved; and

(ii)about how the Aboriginal people and Torres Strait Islanders want the land to be held under this Act; and

(b)consider the views of the Aboriginal people and Torres Strait Islanders mentioned in paragraph (a).

s 194 ins 2011 No. 26 s 70

195Application of general provisions

(1)The following provisions apply in relation to the land as if a reference in the provisions to Aboriginal people includes a reference to Torres Strait Islanders—

(a) section 202 (6) and (7);

(b) section 282 (2).

(2)However, subsection (1) (a) applies for prescribed DOGIT land that is transferred land only if the land is held for the benefit of Aboriginal people and Torres Strait Islanders particularly concerned with the land, and their ancestors and descendants.

s 195 ins 2011 No. 26 s 70

196Application of provisions for grant of land

(1)This section applies if the land is to be or is—

(a)granted under part 4; and

(b)held for the benefit of Aboriginal people and Torres Strait Islanders particularly concerned with the land, and their ancestors and descendants.

(2)The following provisions apply in relation to the land as if a reference in the provisions to Aboriginal people includes a reference to Torres Strait Islanders—

(a) sections 39 and 40;

(b) section 42;

(c) section 104;

(d) section 109;

(e) section 149;

(f) sections 178 and 179;

(g) section 201;

(h) section 203;

(i) section 283;

(j) section 288.

(3) Schedule 1, definition qualified, applies in relation to the land as follows—

qualified, for a CATSI corporation that holds, or proposes to hold, Aboriginal land under this Act that is prescribed DOGIT land, means—

(a)membership of the CATSI corporation is restricted to—

(i)Aboriginal people particularly concerned with the land; or

(ii)Aboriginal people and Torres Strait Islanders particularly concerned with the land; or

(b)the CATSI corporation is a trustee of a trust the beneficiaries of which are restricted to—

(i)Aboriginal people particularly concerned with the land; or

(ii)Aboriginal people and Torres Strait Islanders particularly concerned with the land.

(4)The following provisions apply in relation to the land as if a reference in the provisions to an Aboriginal person includes a reference to a Torres Strait Islander—

(a) section 41;

(b) sections 120 (2) and 121 (2).

(5)Sections 178 and 179 apply in relation to the land as if a reference in the sections to Aboriginal tradition included a reference to Island custom.

s 196 ins 2011 No. 26 s 70

amd 2014 No. 45 s 18

div hdg ins 2011 No. 26 s 70

197Meaning of prescribed reserve land

Prescribed reserve land means any of the following land that is situated on Thursday Island and prescribed under a regulation for this section—

(a)land reserved and set apart under the repealed Land Act 1962 for an Aboriginal reserve or for the benefit of Aboriginal inhabitants;

(b)land dedicated under the Land Act as a reserve for Aboriginal purposes or the provision of services beneficial to Aboriginal people particularly concerned with the land.

s 197 ins 2011 No. 26 s 70

198Application of particular provisions

Sections 120 and 121 apply in relation to prescribed reserve land as if a reference in the provisions to an Aboriginal person includes a reference to a Torres Strait Islander.

s 198 ins 2011 No. 26 s 70

amd 2014 No. 45 s 19

pt hdg sub 2008 No. 29 s 3 sch

199Use of Aboriginal land preserved

(1)If, on the day land becomes Aboriginal land, the land or any part of the land is being occupied or used by the State or the Commonwealth, the State or Commonwealth is entitled to continue to occupy or use it for such period as the land, or that part of the land, is required by the State or Commonwealth.

(2)While the State or Commonwealth is entitled to the occupation or use of land under subsection (1), the improvements on the land are the property of the State or Commonwealth.

(3)If the chief executive becomes aware the occupation or use of land under subsection (1) is no longer required by the State or Commonwealth, the chief executive must give the trustee of the land notice of that fact.

(4)Despite subsection (1), if the State or Commonwealth intends to continue to occupy or use the land, the State or Commonwealth and the trustee of the land are to use their best endeavours to provide for the continued occupation and use of the land under an interest in, or in relation to, the land given by the trustee of the land.

(5) Subsection (1) ceases to apply to land if—

(a)it is subject to a home ownership lease; or

(b)the State or Commonwealth has a right to occupy or use the land under an interest in, or in relation to, the land given by the trustee of the land; or

(c)the trustee of the land receives a notice under subsection (3) for the land.

(6) Subsection (7) applies if the Aboriginal land being occupied or used by the State or the Commonwealth is land that is the subject of a townsite lease.

(7) Subsections (3) to (5) apply as if a reference to the trustee of the land were a reference to the lessee for the townsite lease.

(8)For subsection (1) but without otherwise limiting the subsection, land is being occupied or used by the State or Commonwealth if, immediately before becoming Aboriginal land, it was a reserve under the Land Act and the State or Commonwealth was the trustee of the reserve.

s 199 amd 2008 No. 29 s 45; 2011 No. 26 s 71; 2013 No. 2 s 102; 2013 No. 23 s 352 sch 1 pt 1; 2014 No. 45 s 20

200No rent payable

The State or Commonwealth is not liable to pay any amount in the nature of rent in relation to its occupation or use of land under section 199 (1).

s 200 amd 2008 No. 29 s 46; 2011 No. 26 s 72

201Access to land

(1)While the State or Commonwealth is entitled to the occupation or use of land under section 199 (1), the officers, employees, agents and servants of the State or Commonwealth and their licensees and invitees are entitled, with or without vehicles, machinery, plant and equipment (of any description), to enter and cross Aboriginal land for the purpose of gaining access to the land.

(2)A person mentioned in subsection (1) must only cross Aboriginal land by—

(a)the routes that were commonly used before the land became Aboriginal land; or

(b)other routes agreed on from time to time by the State or Commonwealth and the trustee of the land.

(3)The trustee of Aboriginal land, other than a registered native title body corporate, must not agree on a route for subsection (2) (b) unless—

(a)the trustee has explained to the Aboriginal people particularly concerned with the land the purpose and effect of the proposed route; and

(b)the Aboriginal people are given adequate opportunity to express their views on, and are generally in agreement with, the proposed route.

(4)Contravention of subsection (3) does not invalidate an agreement made for the purposes of subsection (2) (b).

(5)If the Aboriginal land being occupied or used by the State or the Commonwealth under section 199 (1) is land that is the subject of a townsite lease or other registered interest (relevant land)—

(a) subsection (2) applies to the relevant land as if the reference to the trustee of the land were a reference to the lessee of the townsite lease or the person registered in the appropriate register as the holder of the other interest; and

(b) subsection (3) does not apply.

(6) Subsection (5) does not affect the operation of subsections (2) and (3) in relation to Aboriginal land that is not relevant land.

s 201 amd 2008 No. 29 s 47; 2011 No. 26 s 73

202Application of Mineral Resources Act 1989

(1)To allay any doubt, it is declared that the Mineral Resources Act 1989 applies to transferable land as if it were a reserve within the meaning of that Act.

(2)Subject to subsection (5), the Mineral Resources Act 1989 applies to the following land as if it were a reserve, and the trustee of the land were the owner of the land, within the meaning of that Act—

(a)Aboriginal land that is or was transferred land;

(b)Aboriginal land (other than land that was transferred land) that was claimable land, but was not subject to a mining interest at the beginning of the day on which the relevant claim for the land was made under this Act, other than—

(i)land that was acquired by or on behalf of Aboriginal people if all interests in the land (other than interests in favour of the State) were surrendered to or acquired by the State before the land became claimable land; or

(ii)any national park.

(3)To allay any doubt, it is declared that the Mineral Resources Act 1989 applies to Aboriginal land (other than land that was transferred land) that—

(a)was claimable land; and

(b)was acquired by or on behalf of Aboriginal people if all interests in the land (other than interests in favour of the State) were surrendered to or acquired by the State before the land became claimable land;

as if that land were not Aboriginal land.

(4)If Aboriginal land (other than land that was transferred land) was claimable land and was subject to a mining interest at the beginning of the day on which the relevant claim for the land was made under this Act, then—

(a)in relation to the mining interest and any associated interest—to allay any doubt, it is declared that the Mineral Resources Act 1989 applies to the land as if the land were not Aboriginal land; and

(b)in relation to any other mining interest—subject to subsection (5), the Mineral Resources Act 1989 applies to the land as if it were a reserve, and the trustee of the land were the owner of the land, within the meaning of that Act.

(5) Subsections (2) and (4) (b) do not apply in relation to the Mineral Resources Act 1989 , sections 316 and 317.

(6)The holder of a mining lease must, before making application for a mining lease under the Mineral Resources Act 1989 , section 316 or a variation of a mining lease under section 317 of that Act, consult and endeavour to reach agreement with the Aboriginal people particularly concerned with the land in relation to which the application is to be made about the route of the proposed access over the land.

(7) Subsection (6) applies in relation to Aboriginal land held by a registered native title body corporate as if the reference in the subsection to Aboriginal people particularly concerned with the land were a reference to the registered native title body corporate that holds the land.

(8)In this section—

associated interest, in relation to a mining interest, means—

(a)any renewal or other continuance in force of the interest; or

(b)any other mining interest derived through, or as a result of, the interest.

relevant claim, in relation to Aboriginal land, means the claim because of which the land became Aboriginal land.

s 202 amd 2008 No. 29 s 48; 2011 No. 26 s 74; 2013 No. 2 s 112 (amdt could not be given effect); 2013 No. 23 s 352 sch 1 pt 1